author: GREMILLION, Judge.

text:
    Milan GALA v. Mark HARRIS.
    No. 11-654.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    Rehearing Denied Jan. 18, 2012.

      John H. Weinstein, Thomas E. St. Ger-main, Weinstein & St. Germain, L.L.C., Lafayette, LA, for Defendant/Appellee, Mark Harris.
    Luke Edwards, Lafayette, LA, for PlaintiffiAppellant, Milan Gala.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hThe plaintiff, Milan Gala, d/b/a Acadia-na A-l Fence Company, appeals the judgment in favor of the defendant, Mark Harris. For the following reasons, we reverse in part and render and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2008, Gala filed a petition for sums due on an open account against Harris. Gala alleged that Harris owed him $20,000.00 for a fence he partially built for Harris and his wife at their Youngs-ville, Louisiana home. A contract dated August 12, 2005 obligated Gala to construct a fence around the Harris home for $43,432.86. Harris paid Gala $27,650.00 as a down payment with the balance to be paid upon completion. Work on the fence began in August 2005 but was interrupted by Hurricanes Katrina and Rita. The Harrises claim that Gala never returned to finish the job, while Gala claims that he was prevented from finishing the job.

Following a one-day trial in November 2010, the trial court found a contract existed between the parties, but that the $15,782.86 balance was not due since Gala failed to complete the fence, and the contract was for the sale of a future thing that never came into existence. The trial court further found that there was never a meeting of the minds regarding certain modifications of the fence. Thus, the trial court found the contract was not modified. The trial court further found that Gala only partially performed and failed to prove that the Harrises prevented him from completing performance.

Gala filed a Motion for New Trial and to Hold in Contempt and/or Annul Judgment. The trial court denied the motions for new trial, to hold the Harrises in contempt for perjury, and to annul the judgment. Gala now appeals.

| ¡ASSIGNMENTS OF ERROR

Gala assigns as error:

1. The trial court’s failure to award damages to him pursuant to substantial performance or quantum meruit.

2. The trial court’s denial of his Motion for New Trial and To Hold In Contempt and/or To Annul Judgment.

SUBSTANTIAL PERFORMANCE/QUANTUM MERUIT

Gala does not dispute the trial court’s finding that the instant matter was not an open account, but instead arose in contract. The trial court based its ruling on La.Civ.Code art. 2450, which states:

A future thing may be the object of a contract of sale. In such a case the coming into existence of the thing is a condition that suspends the effects of the sale. A party who, through his fault, prevents the coming into existence of the thing is liable for damages.

The trial court stated:

The contract was for the sale of [sic] future thing. The future thing was the fabrication and installation of a fence. The plaintiff provided partial performance; but, the performance was not competed. Final payment for the future thing was due upon completion. Since the future thing was never completed the $15,782.86 has not come due. Plaintiff has failed to prove that the defendants prevented the plaintiffs performance during the period August through December 2005.

We find the trial court legally erred in finding that the contract was for the sale of a future thing. A future thing is a thing that has yet to come into existence, such as a sale of a future crop or an unborn animal. See Frey v. Amoco Prod. Co., 603 So.2d 166 (La.1992). A nearly 90% completed fence is not a future thing. We perform a de novo review of the record and render a judgment on the merits when the trial court legally errs by applying the wrong legal standard. Lasha v. Olin, 625 So.2d 1002 (La.1993).

Substantial Performance

| aGala argues that of an approximately 1300 foot fence, the portion that he did not complete was roughly a 120 foot section that included a metal frame gate. Gala claims that he made repeated attempts to complete the project, but was prevented from doing so by the Harrises. Thus, he argues that he was entitled to recover the contract price because the job was substantially completed. Gala argues that even if the contract had not been substantially completed, the trial court was required to make an award based on quantum meruit. We agree.

In disputes involving construction contracts, whether the contractor has substantially performed determines whether he will recover the full contract price. Ortego v. Dupont, 611 So.2d 792 (La.App. 3 Cir.1992). Whether a contractor has substantially performed under the contract is a question of fact. Id. Factors to consider in determining whether substantial performance exists are “the utility to the owner of the work performed, the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, and the ease of correction.” Walter Lafargue Real Estate, Inc., v. Raines, 420 So.2d 1309, 1311 (La.App. 3 Cir.1982). If the contractor has not substantially performed under the contract, i.e. there is unfinished work, the contractor is limited to recovery in quantum meruit, and his recovery will be reduced by the amounts the owner must expend to complete the project. Id. “The burden of proof of unfinished work or defects and the cost of completion or correction is upon the owner.” Boydstun v. Johnson, 401 So.2d 629, 631 (La.App. 3 Cir.), writ denied, 404 So.2d 1262 (La.1981).

At the conclusion of the trial, the trial court rendered oral reasons for judgment and stated:

Completion has not yet occurred, and the plaintiff has not proven one way or the — I’m not able to determine one way or the other whether the defendants prevented the plaintiff from performing during the period of August and December, or whether or not the defendant simply chose — I’m sorry, plaintiffs simply chose to not perform during that time period.
|4But ultimately, on the 13th of December, plaintiff notified defendant that he was dissolving the contract as a result of failing to perform, and four months of non performance is sufficient to allow the plaintiff to conclude that performance would not occur within a reasonable period of time.
MR. EDWARDS: Your Honor, are you making any specific finding regarding substantial completion?
THE COURT: No, I did not.

The trial court did not make any factual findings regarding the central issues in this case upon which we could rely. In performing our de novo review of the record, the following testimonial evidence was considered. Gala testified that he had been in the fencing business for ten years. He described going out to the Harris property and offering a written proposal, which was submitted into evidence. The proposal lists 658 feet of cedar fence with cedar capping, 655 feet of black aluminum fencing, and several gates, for a total price of $43,432.86. It further shows payments to be made of a $27,650.00 deposit with $15,782.86 due upon completion. Gala testified the down payment was for materials. Gala stated that approximately two weeks after the proposal the materials had arrived and he and Jake Fruge began working on the fence, first setting up fence posts. Gala testified, though, that the Harrises requested a change, which resulted in the removal of the posts to the right of the house which had originally been set up for wood fencing. Gala said the Harris-es decided to change to aluminum fencing. Gala said that 320 feet of wood fencing was replaced with the black aluminum fencing. Gala testified that the aluminum fencing is much more expensive than cedar fencing and would result in a price change. Additionally, he testified that the Harrises added some fencing around pool pumps that was not included in the original proposal that added $2,400.00. He said the new total was $50,757.00 with these changes.

Gala further testified that Mr. Harris requested that he delay in continuing the fence because the Harrises were having work done on their property, including Isthe installation of a pool, tennis courts, and a pond and they did not want the fence to interfere with the work being done. He testified that he installed all but 120 feet of the fence. He knew it was exactly 120 feet because all of the sections were between brick columns that had been installed prior to the fence and each section measured 160 feet. Gala said he had installed five eight-foot panels, leaving 120 feet of fencing to be installed. He further testified that he was unable to install the metal frame gate that amounted to ten feet of fencing. Gala said that he and his crew would have completed the remaining fence work in about six hours.

Gala said that he called the Harrises 37 times between August 2005 and January 6, 2006, submitting his cellular phone bill into evidence. He said that Mr. Harris would occasionally call back and inform him that the pool or pond was not finished. Gala said that from January 6 through March 9, Mr. Harris called twice claiming that the pool or pond had not yet been completed. From January 6 through November 2009, Gala called the Harrises 15 times and received two return calls. He said that the last return call he received from Mr. Harris was on March 9, 2006.

Gala testified regarding some photos he took of the property and stated that he left the materials to finish the fence at the property and that someone else used them to finish the 120 foot section. He pointed out differences between his installation and the installation of the 120 foot section completed by someone else. Photographs admitted into evidence indicate a clear difference in Gala’s workmanship and that of the crew hired to complete the fence.

On cross-examination, Gala denied delaying completion of the Harris’s fence in order to pursue more profitable work that followed the hurricanes. He stated that the hurricanes had nothing to do with his not finishing the fence; instead testifying that the Harrises would not allow him to return to finish the work.

1 f,Fruge testified that he was Gala’s half-brother and that he worked for Gala at the time and had installed the fence posts that later had to be removed due to the change. He said that all but 120 feet of the fence had been installed. Fruge testified it would not have taken more than a day to finish the fence. He said that Gala told him he was waiting on the homeowners to allow him to come and finish the fence.

James Rodriguez testified that he was employed by Mr. Harris’s hospital management company and finished the fence at Mr. Harris’s request in November 2007, some two years after it began. He testified that it took about two weeks to finish and repair damaged parts of the fence. Rodriguez hired men out of Houston to complete the fence. He testified the total for the material and rental equipment, salary, and purchase of an electric fence was $17,247.00. Rodriguez said that he did not install the electric fence that cost $2,500.00 but it was included on the expense sheet because Mr. Harris had to spend that to keep his dogs enclosed. Rodriguez believed the electronic fence was installed sometime in 2005. He further stated this was the first time he had ever installed an aluminum fence. He testified that he had to install 160 feet of the aluminum fencing from one brick column section to another and install about 60 fence caps. He said it took three laborers two weeks to complete the work. He admitted it probably took his crew longer than it would have taken an experienced crew. The expenses for the crew included a hotel stay and food.

Mr. Harris testified that he had recently been married over the summer of 2005. He said his wife had large dogs and he wanted the fence to enclose the property for the dogs. He stated that he thought the fence would be completed in two to three weeks. He testified that the “majority of [the fence] was done” before Hurricane Katrina made landfall on August 29, 2005. He admitted that following Hurricane Katrina no work could be done due to the yard being a mess. He stated that he called Gala in September and October to inquire as to when he would becoming to finish the fence. Harris said the electronic fence for the dogs was installed in October or November. He stated that he got the electronic fence because Gala did not come back and finish the job. Mr. Harris testified that one 160 foot section had not been completed and another had to be repaired.

Mr. Harris testified that on December 13, 2005 his wife called Gala. He said that his wife was “shaking” and “scared” following the conversation and, at that point, he decided he was finished working with Gala. He said that he told Gala later that day via telephone conversation not to return to his house.

Mr. Harris admitted that he did not call in Rodriguez to finish the fence until some twenty months later. He said that the invisible electronic fence was containing the dogs and there were several other projects going on, including pool and the pond. However, he denied telling Gala not to return due to the building of the pool and pond prior to the December 13 conversation. He stated , that he told Gala not to return because he was rude to his wife.

Mr. Harris testified that “[Gala] and my wife had talked about different things after we started this about what we might do, and then in the end, after he finished the initial part of it we called him back we just said, forget anything else, just do what we agreed to do.” He denied agreeing to any changes. However, he later testified when questioned about the changes that “My wife did a lot of changes.” He appeared to agree that the original proposal included more wood fencing that was later changed to aluminum.

Mr. Harris had little knowledge of what made up the $17,247.00 costs of the 160 foot section that Rodriguez completed in 2007.

Mrs. Harris testified that following their July wedding, she moved into the home Mr. Harris owned and wanted to bring her two large dogs. She stated that she wanted the fencing to keep the dogs from getting out of the ten-acre yard. She said that Gala told them the fence would be complete in two to three weeks once |sthe materials arrived. Mrs. Harris said that, although she discussed changes with Gala, they were never finalized and she never agreed to move forward with any changes to the original proposal.

Following Hurricane Katrina, Mrs. Harris testified that Gala would have been unable to complete the project for at least a week due to storm damage. She said that she spoke with Gala in October, at which time he informed her that he was going to do “hurricane work.” She said she asked him when he was going to finish the fence at her house.

Mrs. Harris testified that at the time of the December 13 phone call Gala asked her if they would be willing to pay him $10,000.00 since he had completed more than fifty percent of the work. She said that he “got a little nasty” and hung up on her. Mrs. Harris testified that the invisible fence was installed because they needed a quick way to contain the dogs since there were not many people doing fence work in the area following the hurricanes.

On cross-examination regarding modification of the original contract, Mrs. Harris testified:

Q. Were you aware of a change being made where there was less wood and more aluminum?”
A. Oh. Well, yes, we had talked about changing it because of the hurricane winds, but we never got another bid. We never — can tell you we discussed it, yes, we did.
Q. I’m going to read. “I’m just trying to exclude any information. You do recall that some portion of one side was initially going to be wood?” and what was your response?
A. “Yes.”
Q “And it was changed to aluminum?” What was your response? And read the whole response there.
A. ‘Tes, because of the hurricane winds that we got out there, we did — we did decide to change it.”
|ciQ. Now. On May 6, '09, you testified that you did, in fact change to less wood and more aluminum, but today you testified that you didn’t make that change. Now, which is it?
A. No, I didn’t say. I said that we had discussed it, but we never — we never sat down, never discussed price. We never — yes, we did discuss it because of the hurricane winds.

Based on our review of the evidence, we find that Gala was prevented from completing the fence. It is unreasonable to conclude that Gala would forfeit more than $15,000.00 in labor costs for what amounted to a day’s work. Moreover, the evidence in the record indicates that Gala made repeated attempts to finish the fence, but due to a personality conflict between him and Mrs. Harris, he was told not to return. While most claims involving substantial performance involve a claim by the homeowner that the contractor’s work was defective, there is no such claim here. Nevertheless, due to the Harrises’ breach, the work was incomplete, and therefore, substantial performance could not occur. Even if we accept as true that Gala was the party who breached the contract, he would still be entitled to recover in quantum meruit.

We further find that Gala proved that the contract was modified from the original agreement to include the installation of more aluminum and less wood, plus the addition of fencing around the pool pumps. We accept Gala’s figure of $50,757.00 as the total price for the job including labor and materials. While we find that the Harrises are due an offset for the costs to finish the fence, we find the figures they presented are unreasonable. It is unreasonable to give an offset of $132.67 per foot ($17,247.00 divided by 130 feet of unfinished fencing). Instead, a reasonable calculation is to determine the per-foot price of the fence based on the length of fencing and the total contract price. The total footage of the fence was 1,325 feet, with a total price of $50,757.00 which equals $38.31 per foot. We find that 130 feet of fencing was not completed, thus $38.31 multiplied by 130 feet |inequals $4,980.30 that the Harrises are entitled to as an offset of the amount owed to Gala. The Harrises made an initial down payment of $27,650.00. The down payment plus the offset equals $32,630.30. The total contract price of $50,757.00 minus $32,630.30 equals $18,126.70 owed to Gala.

NEW TRIAL

In this assignment of error, Gala argues that his motion for new trial should have been granted because the judgment is clearly contrary to law and because, pursuant to La.Code Civ.P. art. 1972, he discovered new evidence following the trial; namely, the contract evidencing various modifications that the Harrises denied ever making. Gala claims that after the day of the trial, he called his mother to inform her of the day’s events, at which time she advised him that she may have the document. A late-night search by the mother revealed the modified contract. Gala argues he did not attempt to locate the contract before because a) he assumed it had been lost in the normal course of business, and b) the Harrises never denied the modification contract prior to the trial, and he did not believe its existence was an issue. Gala claims that it was only at trial that Gala learned that the Harrises would deny that they ever agreed to a modification.

We find no error in the trial court’s denial of Gala’s motion for new trial. Simply, Gala should have discovered the modified contract prior to trial. The terms of the contracts including written modifications were central issues before the court. The late-found modified contract is highly probative of exactly what occurred between the parties, the timing issues that existed at the trial, and Incredibility issues. A person exercising due diligence should have located this essential contract prior to the start of trial. Accordingly, this assignment of error is without merit.

Contempt

In this assignment of error, Gala argues the Harrises should be held in contempt pursuant to La.Code Civ.P. art. 224(4) and (10) for lying and perjuring themselves. This claim is based on admission of the late-found modified contract. Because we have found that the modified contract was properly excluded, Gala’s contempt claims must also fail. Accordingly, this assignment of error is without merit.

Annulment

Gala argues the judgment was obtained by fraud and ill practices and should, therefore, be annulled pursuant to La. Code Civ.P. art. 2004. Again, this argument is based on the modified contract being admitted into evidence. Thus, there is no error in the trial court’s denial of the motion to annul judgment.

CONCLUSION

The judgment of the trial court is reversed insofar as it finds that this was a contract for a future thing that never came into existence. Judgment is rendered in favor of the plaintiffiappellant, Milan Gala, in the amount of $18,126.70. The trial court’s denial of Gala’s motions for new trial, contempt, or annulment is affirmed. All costs of this appeal are assessed against the defendant-appellee, Mark Harris.

REVERSED IN PART AND RENDERED; AFFIRMED IN PART.

      . Gala filed a supervisory writ with this court which was denied because the judgment on the merits was a final, appealable judgment.

      . We note that the Harrises may have been due a credit for a second payment of $7,600.00 which Gala admits to in his brief. However, no evidence regarding this payment was presented at trial by any party. In fact, the $7,600.00 payment was not even referenced at trial by any party and the Harrises never claimed a credit for it.

      . We need not address Gala's claim that a new trial should be granted pursuant to La. Code Civ.P. art. 1972(A) as we have found the trial court committed a legal error necessitating a de novo review of the record.

      . Louisiana Code of Civil Procedure Article 1972(2) provides that:
      A new trial shall be granted, upon contradictory motion of any party, in the following cases:
      (2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cramin WILTZ, II.
    No. 11-728.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    Lucretia Pecantte-Burton, Peeantte-Burton & Burton, New Iberia, LA, for Intervenor/Appellant, Albertina Mitchell.
    Harold D. Register, Jr., Law Office of Harold D. Register, Jr., Lafayette, LA, for Defendant/Appellee, Cramin Wiltz, II.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| ilntervenor, Albertina Mitchell, the mother of the minor child, appeals the trial court’s judgment that ignored the hearing officer’s recommendation that child support be set at $1,348.00 per month and, instead, set the amount at $450.00 per month retroactive to July 1, 2010. For the reasons that follow, we amend the judgment to reflect a retroactive date of May 1, 2010, and, as amended, affirm the judgment in all other respects.

FACTS AND PROCEDURAL HISTORY

This litigation began with the filing of a petition to establish paternity, filed by the State of Louisiana through the Department of Social Services on October 4, 2004. The child at issue was born to Albertina Mitchell on August 6, 2002. After DNA testing confirmed that Defendant, Cramin Wiltz, II, was the father of the child, Wiltz signed an acknowledgement of paternity on March 15, 2005. That same day, a judgment was rendered decreeing Wiltz to be the biological father of the minor child, granting provisional care, custody, and control of the minor to Mitchell, and casting Wiltz with all costs of the proceedings. On April 27, 2005, Wiltz was ordered to pay $155.00 per month in child support, plus a five percent (5%) administrative fee, for a total of $162.75. Wiltz was also ordered to maintain health insurance for the child. At that time, Wiltz was a college student at Xavier University in New Orleans, Louisiana. Mitchell also attended college and obtained a bachelor’s degree in sociology with a minor in criminal justice. However, Mitchell is employed as a part-time secretary at the school her child attends.

Following Wiltz’s graduation from dental school at the University of Alabama at Birmingham in June 2009 and his marriage to Dr. Precious Monte McGregor, the State filed a motion to modify the previous order of child support. The hearing officer recommended an increase in monthly child to support to |¾$1,848.00. Wiltz objected to that amount and maintained that he had been accepted into the postgraduate prosthodontics program at Louisiana State University and was prohibited by the regulations of that program from having employment outside of the program. Thus, Wiltz asserted that he was unable to pay the amount recommended by the hearing officer. Mitchell intervened and asserted that Wiltz was voluntarily under/unemployed such that his earning potential, rather than his actual income, should be considered in setting the amount of child support. The matter was heard, and the trial court found that Wiltz’s pursuit of an advanced degree would benefit his child in the future and set the amount of child support at $450.00 per month.

Mitchell now appeals, asserting that the trial court erred declaring that Wiltz was not voluntarily under/unemployed pursuant to La.R.S. 9:315.11 and in not using his earning potential in the calculation of child support. Mitchell also asserts that the trial court erred in failing to determine that the retroactive date for the support granted was not the date of judicial demand.

DISCUSSION

Louisiana Revised Statutes 9:315.11(A) provides that:

If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. In determining the party’s income earning potential, the court may consider the most recently published Louisiana Occupational Employment Wage Survey.

In McDaniel v. McDaniel, 03-1763, p. 4 (La.App. 3 Cir. 5/19/04), 878 So.2d 686, 689, we stated that:

Under La.R.S. 9:315, income includes potential income of a voluntarily unemployed or underemployed party. Thus, if a party is voluntarily unemployed or underemployed, child support must be based on a determination of his or her income earning potential. La.R.S. 9:315.11. Whether a party is voluntarily under/unemployed hwith respect to calculating child support is a question of good faith of the party to be cast with paying the child support obligation. Stephenson v. Stephenson, 37,323 (La. App. 2 Cir. 5/14/03), 847 So.2d 175.

In Aguillard v. Aguillard, 08-1131, p. 6 (La.App. 1 Cir. 12/23/08), 9 So.3d 183, 187, the first circuit discussed the applicable standard of review:

Voluntary unemployment or underemployment is a fact-driven consideration. The trial court has wide discretion in determining the credibility of witnesses, and its factual determinations will not be disturbed on appeal absent a showing of manifest error. Whether a spouse is in good faith in ending or reducing his or her income is a factual determination which will not be disturbed absent manifest error. Romanowski [v. Romanowski], 2003-0124[,] [] p. 8, [(La.App. 1 Cir. 2/23/04),] 873 So.2d [656,] [] 662. We cannot substitute our findings for the reasonable factual findings of the trial court. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882-83 (La.1993).

In this instance, Wiltz testified that he is scheduled to complete the prosthodontics program in June 2012 and that he expects a salary of $120,000.00 per year after completion of the program. He testified that, presently, he is paid $315.00 per month for teaching duties and that he is willing to give all that he is presently making toward the support of his child. He also testified that the program prohibits him from having any outside employment.

In Mosley v. Mosley, 348 So.2d 225 (La. App. 3 Cir.1977), writ denied, 350 So.2d 1213 (La.1977), this court recognized that the father’s decision to leave his employment as the head of the English Department at Northwestern State University to attend law school was reasonable and justified because it was not made in an attempt to avoid his child support obligation and would not deprive his children of continued reasonable financial support. Thus, this court granted the father a reduction in child support. We find this to be an analogous case. Surprisingly, we find no cases that are exactly like the case at bar. However, we are guided by Mosley. Our review of the record reveals that there is sufficient |4evidence to support the trial court’s finding that Wiltz is not voluntarily under/unemployed. The trial court’s implicit finding of good faith and credibility on the part of Wiltz is also supported by the record. Thus, we find Mitchell’s first assignment of error to be without merit.

Mitchell also argues that the trial court erred in failing to determine that the retroactive date for the support granted was not the date of judicial demand. In this case, the judgment states that the increased amount of $450.00 per month is due from July 1, 2010. The hearing officer’s recommendation stated that the increased amount should become effective with the calendar month of May 2010. At the hearing on September 11, 2011, the trial court stated that the effective date would be September 1, 2010, and counsel for the State asked that the court reconsider and set the date of retroactivity to May 1, 2010 (because the hearing date was April 27, 2010, and had Wiltz not appealed, the order would have become effective on May 1). The trial judge reconsidered and ruled that the date of retroactivity would be July 1, 2010. No reasons were given. We find no justification or good cause for setting the date of retroactivity to one other than the date of judicial demand and amend the judgment to reflect a retroactive date of May 1, 2010, as mandated by La.R.S. 9:311(G).

DECREE

For all of the foregoing reasons, we affirm the trial court’s judgment setting child support in the amount of $450.00 per month and amend the judgment to reflect a retroactive date of May 1, 2010. Costs of this appeal are assessed to Interve-nor/Appellant, Albertina Mitchell.

AFFIRMED AS AMENDED.


author: KEATY, Judge.

text:
    John W. DESHOTELS v. VILLAGE OF PINE PRAIRIE, et al.
    No. 11-516.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    John Deshotels, In Proper Person, Pine Prairie, LA, PlaintiffiAppellant.
    Steven M. Oxenhandler, Michael J. O’Shee, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellees, Village of Pine Prairie, Terry Savant, Debra Oge, Tammy Hammond, James Quint West.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

|, Appellant, a pro se litigant, appeals the trial court’s ruling sustaining an exception of no cause of action filed by defendants. He alleges that the trial court failed to grant him leave to amend his petition as mandated by La.Code Civ.P. art. 934. Finding that the judgment contained within the record is not in accord with the reasons for judgment and that the matter before us on appeal was not addressed in any judgment, we dismiss the appeal.

Issue

The sole issue appealed is whether La. Code Civ.P. art. 934 requires that a plaintiff be granted leave to file a supplemental and amended petition in order to cure the petition of the defects alleged by defendants in their exception of no cause of action.

Facts and Procedural History

Plaintiff, John Deshotels, filed a pro se petition for damages and “wrongful prosecution” against Defendants, the City of Pine Prairie, Mayor Terry Savant, personally and in his capacity as mayor of the City of Pine Prairie, and council members Tammy Hammond, James Quint West, and Debra Oge. From his handwritten petition, we are able to discern that: 1) Des-hotels was arrested and spent twenty days in jail; 2) Deshotels believes that he was jailed because there was trash and/or a trailer on a certain piece of property; 3) Deshotels believes that the City of Pine Prairie left the trash on the lot; 4) Des-hotels claims he was not anywhere near that property because he had been ordered by the trial court to stay away and not to interfere with the removal of the trailer; and 5) Deshotels allegedly suffered medical injuries as a result of the incident. Deshotels sought damages in 12the form of twenty days of jail time per defendant and twenty million dollars, plus attorney fees and court costs.

The defendants filed an answer, an exception of no cause of action, and a motion to strike Deshotels’ request for a jury trial. These matters were set for hearing on November 10, 2010. Deshotels filed a duplicate copy of his petition, in addition to an answer to defendants’ answer, into the record, after which the defendants filed a motion to strike the duplicate copy of the petition and a motion to quash subpoenas issued by Deshotels. These motions were also set for hearing on November 10, 2010. After the hearing on November 10, 2010, the trial court signed a “Judgment” granting defendants’ motion to quash and motion to strike. The judgment is silent as to the exception of no cause of action. On December 21, 2010, the trial court signed “Reasons for Judgment,” which addressed and granted the exception of no cause of action, but was silent as to the motion to quash and the motion to strike.

Deshotels has appealed the trial court’s judgment on the exception of no cause of action, alleging that he was not granted leave to amend his petition by the trial court, pursuant to La.Code Civ.P. art. 934, which provides in pertinent part, “[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment.”

| ^Standard of Review

“The standard of review for sustaining or denying a peremptory exception of no cause of action is de novo because it raises a question of law.” Hebert v. Shelton, 08-1275, p. 3 (La.App. 3 Cir. 6/3/09), 11 So.3d 1197, 1201.

Law and Discussion

Despite Deshotels’ appeal of the trial court’s application of La.Code Civ.P. art. 934, we take judicial notice that the record is void of a judgment on the exception of no cause of action, which is the only issue before us on appeal. Appeals are taken from final judgments. La.Code Civ.P. art. 2083. “A final judgment shall be identified as such by appropriate language. When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment.” La.Code Civ.P. art. 1918.

In the instant case, the record only contains a judgment which addresses a motion to quash and a motion to strike. Though there are reasons for judgment in the record addressing the exception of no cause of action, there is no signed judgment addressing the exception of no cause of action. It is clear from the minutes and the transcript that the trial court heard argument on all three issues and only issued a final, appealable judgment concerning two of the three issues, neither of which addressed the exception of no cause of action. Because the issue on appeal was not adjudicated in the final judgment, we must dismiss this appeal. Appellant has thirty days to obtain a final judgment from which he can lawfully appeal in accordance with the law.

Decree

For the reasons stated herein, this matter is dismissed. Costs are cast against the City of Pine Prairie.

APPEAL DISMISSED.

      . We interpret the petition for "wrongful prosecution” as one for "malicious prosecution.”

      . At oral arguments, Deshotels asserted that he did not own the property.

      . We note that the only judgment in this case addresses issues not before us on appeal. The reasons for ruling explain the trial court’s decision as far as the exception is concerned, but the exception is not disposed of in a judgment.


author: AMY, Judge.

text:
    Clarence M. LELAND, et ux. v. LAFAYETTE INSURANCE COMPANY, et al.
    No. 11-475.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 2011.

      Donald C. Brown, Woodley, Williams Law Firm, L.L.C., Lake Charles, LA, Howard Bruce Kaplan, Bernard, Cassisa & Elliott, Metairie, LA, for Defendant/Appellant, Lafayette Insurance Company.
    Hunter W. Lundy, Lundy, Lundy, Soi-leau & South, LLP, Lake Charles, LA, for Plaintiffs/Appellees, Clarence M. Leland, Myna G. Leland.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

hThe plaintiffs filed suit against their property insurer, asserting that the insurer breached its duty of good faith and fair dealing in adjusting losses associated with hurricane-related damage incurred to their rental property. A jury found in favor of the plaintiffs, awarding sums it found due under the policy, statutory penalties and attorney fees, and damages stemming from the events. The insurer appeals. For the following reasons, we affirm as amended.

Factual and Procedural Background

The plaintiffs in this insurance dispute, Clarence “Don” and Myna Leland, own rental property in Lake Charles that was damaged during Hurricane Rita in September 2005. The property, a former home constructed in the early 1900s, had been converted for commercial purposes and was most recently rented to a bridal salon for $600.00 per month. Although the building was undisputedly damaged in the storm by a tree falling into the southern section and shearing a portion of the facade from the building, this dispute arose, at least in part, due to questions regarding the extent of that damage.

The record indicates that, by October 7, 2005, the plaintiffs notified the defendant insurer, Lafayette Insurance Company, of damage to the property and that an adjuster was assigned to the claim. The adjuster, Larry Saint, was employed by CNC Resource, an independent adjusting firm. Differences in opinions regarding the amount of storm-related damage to the property emerged. By January 2006, Lafayette tendered a check in the amount of $20,567.73 per the adjuster’s estimate and deductions for depreciation and the deductible. However, Lafayette’s correspondence included not only the check, but also a “Proof of Loss and Statement as to Full Cost of Repair or Replacement,” which Lafayette requested the plaintiffs sign and return. The form included the following:

| ¡.This authorization to be filled out only in event proceeds of loss are to be paid to other than the insured.
You are hereby requested and authorized to make payment to C.M. Leland & Myna G. Leland in consideration of which the company is discharged and released from further claim as a result of the loss herein referred to.

Although Lafayette took the position at trial that this language was inapplicable to the plaintiffs and was inadvertently left in the Proof of Loss form issued to the plaintiffs, the plaintiffs did not accept this check, or two subsequent checks, as they felt that the accompanying form constituted a release.

By March 2006, the plaintiffs’ contractor, Jay Briggs, submitted an initial bid of $49,802.00 to repair the damage. According to testimony, the bid was only an initial estimate and did not include certain code upgrades later claimed necessary, nor certain fundamental components to the rebuilding that would have been determined at a later time. Internal documents from Lafayette reveal the insurer’s intent to have its adjuster, Mr. Saint, contact the plaintiffs’ contractor regarding the bid. Despite this intent, no agreeable solution was reached between the parties for approval of Mr. Briggs’ estimate. Throughout the proceedings, Lafayette complained of what it contended was a lack of itemization in Mr. Briggs’ estimate/bid. The record contains no information indicating that Lafayette |.^specifically designated the way in which the bid was insufficient, instead expressing a general request for further specificity.

In July 2006, the City of Lake Charles informed the plaintiffs that the property had been deemed “a hazard to safety or health by reason of abandonment, inadequate maintenance, dilapidation, or other dangerous conditions.” It listed more than five pages of corrections to various components of the house, including the foundation, which it required be remedied within fifteen days. Although the plaintiffs notified Lafayette of this development, stating that they did not want to lose their building, Lafayette responded that it had not received further itemized estimates from Mr. Briggs or other contractors. It stated that the plaintiffs failed to fully comply with the “loss conditions” portion of the policy as they had “not provided [Lafayette] with any itemized or competitive bids for repair.” Lafayette further stated in this July 31, 2006 letter that, “[additionally, steps must be taken to mitigate your damages and to resume your operations as quickly as possible.” Lafayette also sought further documentation in support of the plaintiffs’ claim for loss of rents.

Subsequently, the plaintiffs obtained and forwarded an additional roofing estimate in the amount of $12,800.00 and hired their own adjuster, Ron Rhodes of R & D Associates. Afterwards, in October 2006, the plaintiffs forwarded a Sworn Statement of Proof of Loss to Lafayette in which they sought the policy limits of $91,000.00 and a “whole loss and damage” of $102,722.21. They attached Mr. Rhodes’ independent appraisal to their statement. In response, Lafayette informed the plaintiffs that it was rejecting their Proof of Loss, but indicated that it would be assigning a second adjuster to re-inspect the property. Lafayette reiterated that it had received no additional estimates from the plaintiffs’ contractor.

LLafayette’s second adjuster, Will Page, issued an appraisal in January 2007. By that time, he estimated replacement costs at $39,013.85. After reductions for depreciation and the amount of the first tendered check, Lafayette issued a second check to the plaintiffs for $15,780.33.

The plaintiffs did not negotiate this second check and again made demand for the limits of their policy. They also sought an additional $25,000.00 for the removal of debris from the property pursuant to a March 2007 resolution by the City of Lake Charles authorizing demolition procedures in May 2007 if a permit for the removal or refurbishment of the building was not obtained. Otherwise, the plaintiffs advised that they would pursue statutory penalties and attorney fees for what they contended was Lafayette’s breach of its obligation of good faith and fair dealing. Lafayette denied this claim and noted that its payments to date had been $43,567.73 and that it was awaiting additional documentation for the plaintiffs’ loss of rental income claim.

By the end of April 2007, with the City of Lake Charles’ deadline approaching, the plaintiffs sought a supplemental appraisal from its independent adjuster in light of a variety of “code upgrades” required by the City for reconstruction. Thereafter, the plaintiffs again demanded the policy limits and an additional $25,000.00 they alleged the policy covered for the code upgrades. Lafayette again informed the plaintiffs of its denial of their claim as it “determined that the damage listed has either been considered” or that it “claimed non-covered damages.” Lafayette notified them that, in order to resolve the dispute, it would be sending a structural engineer to inspect the property.

After the denial of the claim, the plaintiffs obtained financing in order to perform the necessary renovations to the building ahead of the City’s deadline. | ¿The plaintiffs ultimately contended that the renovation expenses exceeded $171,000.00. At one point, in June 2007, Lafayette issued a final payment in the amount of $505.80 as a “supplement for fascia, soffit and ceiling molding.” However, the remainder of the claim was denied.

The plaintiffs filed this matter in September 2007, seeking not only its policy limits, but statutory penalties and attorney fees as well. The plaintiffs named Lafayette Insurance Company and the insurance agency that obtained the Lafayette policy for the plaintiffs as defendants. The latter defendant was subsequently dismissed.

Ultimately, a jury found in favor of the plaintiffs, concluding that the plaintiffs sustained losses in excess of the amount paid under the defendant’s policy in the amount of $144,800.00. Further, the jury concluded that the defendant: 1) failed to initiate a loss adjustment to the property within thirty days after notification of loss; 2) was arbitrary, capricious, or without probable cause in failing to pay any claim due within sixty days after receipt of satisfactory proof of loss; 3) failed to make an offer to settle the property damage within thirty days of receipt of satisfactory proof of loss; and 4) misrepresented pertinent facts or insurance policy provisions related to coverage at issue.

With regard to damages, the jury awarded $5,000.00 for loss of rental income, $53,000.00 for loss of personal income, and $30,000.00 in interest. The jury awarded Mr. and Mrs. Leland $45,000.00 each for their mental anguish and emotional distress. Due to its findings regarding Lafayette’s conduct, the jury awarded $645,600.00 in penalties and $319,572.00 as attorney fees. The judgment totaled $1,287,972.00.

| fiLafayette appeals, assigning the following as error:

[1.] The trial court erred in awarding attorney fees.
[2.] The trial court erred in using contractual damages in the calculation of penalties.
[3.] The trial court erred in allowing expert testimony.
[4.] The jury erred in awarding consequential damages.

Discussion

Statutory Penalties and Attorney Fees

As seen above, the jury determined that Lafayette breached a number of statutory duties required by either La.R.S. 22:658 or La.R.S. 22:1220. While these statutes are discussed separately below, it is an important starting point to recognize the close relationship of the two statutes and the availability of penalties and/or attorney fees. See, e.g., Calogero v. Safeway Ins. Co. of La., 99-1625 (La.1/19/00), 753 So.2d 170.

Of particular note, and as related to the jury’s findings in this case, certain similar conduct is prohibited by both statutes. For example, both penalize an insurer’s failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. See La.R.S. 22:658(A)(1); La.R.S. 22:1220(B)(5). The length of prohibited delays differs under the statutes. Under La.R.S. 22:658(A)(1), the insurer must pay the claim within thirty days of receiving satisfactory proof of loss, whereas La.R.S. 22:1220(B)(5) penalizes the insurer’s failure to pay the claim within sixty days.

The jury in this case determined that, among other breaches of designated statutory duties of good faith and fair dealing, Lafayette was arbitrary, capricious, |7or without probable cause in failing to pay the amount of any claim due the Le-lands within sixty days after receipt of satisfactory proof of loss. Thus, because this time period is inclusive of the thirty-day delay, the penalty provisions of both La.R.S. 22:658(A)(1) and La.R.S. 22:1220(B)(5) are implicated. However, the supreme court has confirmed that La. R.S. 22:1220 supersedes La.R.S. 22:658 when the former statute provides the greater penalty and that a plaintiff cannot recover penalties under both statutes. See Calogero, 753 So.2d 170. Yet, because La. R.S. 22:1220 does not provide for an attorney fee, a plaintiff otherwise proving entitlement to recovery under La.R.S. 22:658 can recover an attorney fee thereunder. Id.

This relationship between La.R.S. 22:658 and La.R.S. 22:1220 is seen in the present case. Here, the jury found breaches of the duties owed under both statutes and, as a result, awarded an attorney fee, available under La.R.S. 22:658, and a penalty pursuant to La.R.S. 22:1220. We turn to consideration of each.

Attorney Fees

Availability

As for the award of attorney fees, Lafayette’s first assignment concerns the version of La.R.S. 22:658 applicable in this case. As stated above, the jury not only determined that Lafayette failed to pay the insurance claim in a timely fashion, it further determined that Lafayette violated the duty that an insurer “shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.” La.R.S. 22:658(A)(4). However, the penalties stemming from the breach of those duties has changed during the course of this claim.

|sAt the time of Hurricane Rita, in September 2005, La.R.S. 22:658(B)(1) permitted recovery of a 25% penalty and did not provide for the recovery of attorney fees. Effective August 15, 2006, however, the legislature amended La.R.S. 22:658(B)(1) to permit recovery of a 50% penalty and attorney fees. This amendment does not apply retroactively. Sher v. Lafayette Ins. Co., 07-2441 (La.4/8/08), 988 So.2d 186; Durio v. Horace Mann Ins. Co., 11-84 (La.10/25/11), 74 So.3d 1159.

Lafayette contends that the plaintiffs’ cause of action in this case came into existence at the time of Hurricane Rita, in September 2005, and, thus, existed prior |9to the August 2006 amendment. Basing its argument upon Slier, 988 So.2d 186, Lafayette asserts that the attorney fees as awarded were not permissible. The plaintiffs contend, however, that the evidence supports the view that Lafayette’s actions after August 15, 2006 violated the statutory duty owed and, therefore, the award of attorney fees was appropriate.

In Slier, 988 So.2d 186, the supreme court addressed a claim arising from damages incurred in August 2005 from the effects of Hurricane Katrina. The plaintiff in that case asserted that he was entitled to the additional penalties provided by the 2006 amendments to La.R.S. 22:658 insofar as the insurer’s breach of the duty of good faith and fair dealing in paying the claim continued after the statute was amended. Although the supreme court recognized, in Sher, that an insurer “has a continuing duty of good faith and fair dealing which extends throughout the litigation period,” it observed that the plaintiffs claim “first arose prior to the amendment of R.S. 22:658.” Id. at 199. Therefore, the supreme court rejected the plaintiffs argument that the continuing breach of duty of good faith and fair dealing subjected the insurer to post-amendment penalties and attorney fees. Id.

However, the present case is factually distinguishable from Sher. The plaintiffs in this case did, in fact, report' damage to the insurer soon after the September 2005 storm. Yet, whether by virtue of the parties’ own actions/inactions, or by virtue of later-uncovered damage, the plaintiffs’ demands and their presentation of satisfactory proof of loss gradually unfolded. In fact, as evidenced by the timeline above, most of the activity in this case occurred after the |inAugust 15, 2006 effective date of the amendment to the statute. The plaintiffs did not obtain their own adjuster and file their first Proof of Loss seeking policy limits until October 2006. Various reports, appraisals, estimates, and the demand for code upgrades required by the City followed thereafter. The petition instituting this matter was not filed until September 2007.

This series of events, most of which occurred after the amendment to La.R.S. 22:658, is consistent with the supreme court’s statement that:

Because the duty is a continuing one, had plaintiff not first made satisfactory proof of loss prior to the amendment of R.S. 22:658, his petition for damages served after the amendment became effective could have served as satisfactory proof, thereby triggering the time period set forth in the statute and could have subjected Lafayette to the penalties contained in the amendment because the claim would have first arisen after the amendment. Further, again because the duty is a continuing one, had plaintiff made satisfactory proof of loss prior to the amendment and had Lafayette paid that claim, and had plaintiff discovered new damage and made satisfactory proof which Lafayette failed to pay within the time period contained in the statute, but after the amendment became effective, Lafayette could have been subject to the penalties contained in the amendment because the claim would have arisen after the effective date of the amendment.

Sher, 988 So.2d at 199. See also Durio, 74 So.3d 1171.

Given the timeline of this ease, we find no error in the judgment’s inclusion of attorney fees based upon application of the amendment to La.R.S. 22:658.

Quantum

Under this assignment, Lafayette also asserts that the attorney fee, awarded in the amount of $319,752.00, is excessive. Although it does not further address the award or specify in what way it is excessive, Lafayette seeks a reduction.

The record indicates that the plaintiffs retained counsel through a contingency contract for thirty-three and one-third percent of the recovery procured. The judgment rendered, absent the attorney fee, totaled well over | , ,$900,000.00. Thus, the attorney fee awarded is in keeping with the contractual arrangement and is reflective of the multiple-year litigation involved in this suit and the week-long trial resulting in the judgment under review. The representation is evidenced by the fifteen-volume record filed in this appeal. However, we do find it necessary to amend the attorney fee awarded insofar as the jury’s award was based, in part, on a penalty which impermissibly included contractual damages, as discussed below.

Thus, we revise the attorney fee to take into consideration our amendment to the penalty awarded. Given the amended judgment resulting from this opinion and counsel’s contingency contract for thirty-three and one-third percent of the recovery procured, we reduce the attorney fee award to $226,266.67.

Penalties

In addition to attorney fees, the jury awarded penalties in the amount of $645,600.00. Lafayette contends that the jury calculated the penalty incorrectly under La.R.S. 22:1220 insofar as it included the amount found due under the insurance policy. Louisiana Revised Statutes 22:1220 provides that:

A. • An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
|1⅞6. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
(3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
(4) Misleading a claimant as to the applicable prescriptive period.
(5) Failing to pay the amount of any claim due to any person injured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
(6) Failing to pay claims pursuant to La.R.S. 22:1893 when such failure is arbitrary, capricious, or without probable cause.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater....

(Emphasis added.) Thus, La.R.S. 22:1220 provides for damages as a breach of the duties of good faith and fair dealing described therein and for a penalty calculated |isat two times the damages sustained.

Lafayette claims that, in calculating the penalty due, the jury should have included only non-contractual damages sustained as a consequence of the underlying breach. It notes that La.R.S. 22:1220(A) provides that any insurer is “liable for any damages sustained as a result of the breach.” (Emphasis added.) Lafayette argues that the amount due under the contract cannot be considered a damage sustained as a result of the breach of its duties. In light of the supreme court’s recent pronouncement in Durio, Lafayette’s argument on this point has merit.

In Durio, 74 So.3d 1168, the supreme court observed that La.R.S. 22:1220(A) provides for the mandatory award of those damages “sustained as a result of the breach” of the duty imposed by the statute, whereas Paragraph (C) provides for a penalty of two times the damages sustained or $5,000, whichever is greater. The supreme court explained, in part, that “[cjonsidering the statute in its entirety and applying the words of the statute as written, the only logical reading is that the ‘damages sustained ’ in Section (C) are the same ‘damages sustained as a result of the breach ’ in Section (A).” Id. at 1169.

Additionally, a comparison of the wording of La.R.S. 22:658 and La.R.S. 22:1220 indicates that contractual damages are not to be included in the calculation of the penalty available under the latter statute insofar as La.R.S. 22:658 specifically refers to those damages whereas La.R.S. 22:1220 does not. Durio, 74 So.3d 1168-70. If the legislature had intended for La.R.S. 22:1220 penalties to “be calculated based on the amount due under the contract, it would have easily and clearly stated so ... as it did in La.R.S. 22:658.” Id. at 1170. Thus, in Durio, the supreme court amended a penalty award which had included contractual damages |14in the calculation. Id.

In keeping with the wording of La.R.S. 22:1220, as well as the pronouncement in Durio, 74 So.3d 1173, we amend the judgment to include a penalty of two times the amount of damages attributable to the breach of Lafayette’s duties under the statute. In this case, those damages total $178,000.00. Accordingly, we amend the judgment to reflect a penalty of $356,000.00.

Expert Testimony

In the presentation of their case, the plaintiffs presented the reports of its independent appraiser, Ron Rhodes, and the expert testimony of Cal Chambers, accepted as an expert in the field of insurance adjusting, and that of Charles Norman, accepted as an expert in the fields of civil and mechanical engineering with a subspe-cialty in wind engineering.

Chambers Testimony

Throughout the proceedings, Lafayette objected to the references to Mr. Rhodes’ appraisals/reports insofar as he was not present due to health concerns. The majority of the information is included in Lafayette’s claims file and attached to the plaintiffs’ Proofs of Loss filed with Lafayette. Central to Lafayette’s claim is Mr. Chambers’ testimony regarding these reports. Mr. Chambers explained during his testimony that he previously worked with Mr. Rhodes at R & D Associates as an independent contractor. He was thereafter permitted to explain some aspects of Rhodes’ appraisals. However, Lafayette argued below that this was insufficient to overcome the underlying hearsay issue, particularly in light of the fact that Mr. Chambers had not worked with R & D since 2008 and he had no | ^underlying knowledge regarding the preparation of Mr. Rhodes’ appraisals or the methodology used. Lafayette re-urges this argument on appeal, asserting that the reports themselves and Mr. Chambers’ testimony, to the extent he relied on or explained portions of the reports, should have been excluded.

In denying Lafayette’s objection in this regard, the trial court determined that the complained-of hearsay issue was overcome in light of Mr. Chambers’ identification of certain aspects of the reports. Considering the context of the references to the subject appraisals and their entry into the record, we do not disturb this ruling on review.

Rather, we are mindful that Mr. Leland, himself, testified regarding his hiring of Mr. Rhodes and the atmosphere in which his reports were obtained. Additionally, Mr. Chambers, testifying as an expert in the field of insurance adjusting, was able to explain the extent to which he relied upon the inclusions in the reports. In this regard, La.Code Evid. art. 702 provides that:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

As for the remainder of Lafayette’s objections to Mr. Chambers’ qualification as an expert witness, we find no error in the trial court’s ruling or in the introduction of his testimony. Mr. Chambers explained that he personally inspected the building and prepared his own damage assessment and appraisal. Although he did not see the building prior to repair, a chief concern of Lafayette, he reviewed photographs of its pre-repair condition. He also had access to the engineer’s report, among other documents and depositions. The jury was made | ifiaware of the timing of his visit and his reliance on certain materials, including the photographs. It was, therefore, able to weigh this evidence as it deemed appropriate.

Norman Testimony

Neither do we find merit in Lafayette’s assertion that the trial court erred in permitting Charles Norman to testify regarding his damage assessment of the building. Lafayette places its concern regarding Mr. Norman’s opinion testimony in the context of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). It asserts that Mr. Norman’s opinions were unreliable under the Daubert analysis due to several factors, including the fact that he did not inspect the premises until after the renovations were made and that he performed certain calculations after his report was written and these calculations were based on assumptions regarding the weight of the tree that fell onto the building.

We reject Lafayette’s argument in this regard. Although the transcript from the pre-trial hearing on the admissibility of the experts’ testimony is not contained in the record, neither the exhibits filed into the record at that time nor the transcript from the trial of this matter indicate that Mr. Norman’s testimony regarding the tree’s impact on the house was erroneously admitted. The trial court was able to consider the factors reviewed by Mr. Norman in issuing his report and his related opinion regarding his appreciation of the effects of the tree’s impact. As with Mr. Chambers’ testimony, the jury was able to consider the weight it determined was appropriate for Mr. Norman’s testimony in light of the fact that his estimates were based on a post-repair inspection of the property and related materials.

This assignment of error lacks merit.

| ^Damages

In its final assignment, Lafayette contests the jury’s awards of mental anguish damages and those for lost income.

Mental Anguish

First, Lafayette does not question the availability of mental anguish damages following a ■violation of La.R.S. 22:1220, now La.R.S. 22:1973. Instead, it asserts that the plaintiffs did not present sufficient evidence to support the individual awards of $45,000.00 to each of them. Primarily, Lafayette asserts that the figure is not supported as they did not present medical support for their claims.

We do not disturb the jury’s award in this regard, finding adequate support in the record. Both plaintiffs offered testimony on this element of recovery. Mr. Leland testified extensively regarding the frustrations encountered in pursuing this multi-year claim and in making little progress toward a satisfactory conclusion. The record is replete with repeated and persistent inquiries and demands regarding his property, which remained unrepaired by him in light of the insurer’s actions and the financial commitment required. The stressful circumstances created by the situation are evident from the documentary evidence and from his testimony. Additionally, he testified that this property and its rental income were intended to serve as a retirement investment for the couple. Rather than being able to rely on that investment, they were without rental income for years and had to, eventually, borrow more than $142,000.00 for the repairs in order to avoid having it destroyed by the City. He explained that this process was particularly difficult for his wife, who was reluctant to accept the debt. Mrs. Leland testified regarding the “constant worry of that burden.”

|1sBoth plaintiffs testified regarding the negative impact that the events had on their relationship. Mr. Leland explained that they had both gained weight and that they “don’t sleep.” He further stated that “[t]he lack of sleep is one of the hard things because when you don’t sleep you don’t feel good, and when you don’t feel good you fight.” Mrs. Leland explained that her husband did not talk as much as he used to and that he no longer golfed or fished as he once had. She stated that: “The marriage will make it because we made a commitment 40 years ago, but it is not the marriage we had. It’s not the marriage we thought we would have at this point in life. He doesn’t talk very much, he doesn’t talk to me.”

In light of this testimony and the evidence in the record regarding the plaintiffs’ pursuit of their insurer in having their claims satisfied, the jury’s award is supported by the record.

Lost Wages

Lafayette also contests the jury’s award of $53,000.00 for “loss of personal income.” It contends that there was no basis for this award in the record other than Mr. Leland’s uncorroborated testimony. Lafayette correctly identifies the fact that the majority of the evidence on this element of damages came from Mr. Leland himself. However, both Mr. Leland’s testimony and the record as a whole support the underlying award.

Mr. Leland, an attorney practicing in Mississippi, testified that in pursuing the repairs to the property he documented in excess of $53,000.00 in loss of billable hours spent on the project. He further stated that he did not document all of his work on his accounting software. In addition to the evidence and correspondence in the record revealing his work on pursuit of the policy proceeds, Mr. Leland further worked on the rebuilding effort himself. Although Shawn |1flHunt, a builder from Mississippi, travelled to Lake Charles to handle the labor aspect of the job, Mr. Leland testified that he personally “handled the materials.” Mr. Hunt confirmed that Mr. Leland handled not only the expenses, but that Mr. Leland did some of the physical labor himself, hauling metal to the site for the roof and coming from Mississippi “several times.”

Given this testimony, we find Mr. Leland’s testimony regarding his lost wages sufficiently supported in the record.

Lafayette’s final assignment lacks merit.

DECREE

We amend the judgment to reflect an award of penalties in the amount of $356,000.00 and an award of attorney fees in the amount of $226,266.67. In all other areas of recovery, the judgment of the trial court is affirmed. Costs of this proceeding are assessed equally to the appellees, Clarence and Myna Leland, and to the appellant, Lafayette Insurance Company.

AFFIRMED AS AMENDED.

      .Mr. Briggs’ bid itemized the following:
      Labor and materials to repair storm damages at 403 Seventh Street as follows:
      1. Stump removal at corner
      2. Demolition at corner — preparation for repairs
      3. Structural and carpentry repairs at corner
      4. Miscellaneous carpentry repairs at remainder of building
      5. Glass replacement
      6. Painting as required
      7. Remove and replace approximately 52 squares of asphalt shingle roofing
      8. Clean up and trash hauling.

      . Effective January 2009, La.R.S. 22:658 was re-numbered as La.R.S. 22:1892. Louisiana Revised Statutes 22:1220 was re-numbered as La.R.S. 22:1973. For consistency of discussion, this opinion retains the numbering in use at the time of the underlying events.

      . In September 2005, La.R.S. 22:658(B)(1) provided:
      Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand thereof or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of twenty-five percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, twenty-five percent of the difference between the amount paid or tendered and the amount found to be due.
      (Emphasis added.)

      . Pursuant to 2006 La.Acts No. 813, La.R.S. 22:658(B)(1) was amended to provide that:
      Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand thereof or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.
      (Emphasis added.)

      .Of course, the percentage of damages available as a penalty under the statute is irrelevant to this discussion insofar as the damages awarded as penalty in this case were made pursuant to La.R.S. 22:1220, discussed below. Only the availability of attorney fees is at issue in this assignment.

        . The amended judgment resulting from this opinion totals $678,800.00. The figure is comprised of $144,800.00 in contractual damages, $178,000.00 in special and general damages, and $356,000.00 in penalties arising under La.R.S. 22:1220. Thus, attorney fees of thirty-three and one-third percent of the total recovery procured ($678,800.00) are $226,266.67.

      . The $645,600.00 penalty awarded by the jury equals two times the total amounts awarded under the insurance policy ($144,-800.00), for loss of rental income ($5,000.00), loss of personal income ($53,000.00), interest incurred ($30,000.00) and the total sum due for mental anguish and emotional distress ($90,000.00).

      . The jury found that Lafayette breached the duties imposed by La.R.S. 22:1220(B) in three respects as revealed by the jury’s "Yes” response to each of the following inquiries on the jury interrogatories:
      3. Do you find by a preponderance of the evidence that:
      (b)Lafayette Insurance Company was arbitrary, capricious, or without probable cause in failing to pay the amount of any claim due the Lelands within sixty (60) days after receipt of satisfactory proof of loss?
      (c) Lafayette Insurance Company failed to make an offer to settle the property damage claim within thirty (30) days of receipt of satisfactory proof of loss?
      (d) Lafayette Insurance Company misrepresented pertinent facts or insurance policy provisions related to any coverages at issue?

      . This figure is comprised of the awards for loss of rental income ($5,000.00), loss of personal income ($53,000.00), interest ($30,-000.00), and mental anguish and emotional distress (a total of $90,000.00).

      . The Supreme Court of Louisiana has recently confirmed the availability of mental anguish damages under this statutory provision. Wegener v. Lafayette Ins. Co., 10-810 (La.3/15/11), 60 So.3d 1220.


text:
    Royd MENARD v. IBERIA PARISH SHERIFF’S OFFICE.
    No. 11-707.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      Charles L. Dirks, III, Attorney at Law, Baton Rouge, LA, for Plaintiff-Appellant, Royd Menard.
    G. Edward Williams, Jr., Attorney at Law, David Clay Clarke, Attorney at Law, Lafayette, LA, for Defendants-Appellees, Sheriff Louis Ackal, in his official capacity as Sheriff of Iberia Parish, and CCMSI.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| [Plaintiff, Royd Menard, appeals the dismissal of his claim for supplemental earnings benefits (SEB) on Defendant’s exception of prescription. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In March of 2004, Royd Menard was hired as a Deputy Sheriff by the Iberia Parish Sheriffs Office. Menard alleges that he injured his left knee when he fell on a broken sidewalk in the course and scope of his employment on January 31, 2005, while he was transporting a prisoner to the New Orleans Charity Hospital. Defendants deny that there was a work-related injury. In any event, Menard had knee surgery on his left knee on March 14, 2005. He was released to light duty in May 2005. He returned to full duty in October 2005. Menard received total temporary disability (TTD) benefits from the date of his alleged injury until he returned to work at full duty in October 2005. On November 29, 2005, Menard alleges that he suffered another work-related injury, this time to his right knee, as he got out of a chair to intervene in a fight. Menard received TTD benefits from December 14, 2005, through November 14, 2006. In December 2006, Menard was released to light duty and worked as a gate guard until March 2007 when he found other employment at Angelle Concrete and voluntarily left the employ of the Iberia Parish Sheriffs Office. He was laid off by Angelle Concrete in January 2009.

Menard had another knee surgery on June 9, 2009, and made a claim for SEB against the Iberia Parish Sheriffs Office by filing an LWC-WC-1008 form and mailing it OWC District 4 (Lafayette Parish) office on November 5, 2009. On November 16, 2009, Judge Sharon M. Morrow ordered the claim transferred to OWC District 9 (Iberia Parish). Once the Iberia Parish Sheriffs Office was served, it filed an answer and asserted an exception of prescription. A hearing was held via telephone on the exception of prescription on February 3, 2011, and the exception was |2denied. Defendant refiled its exception of prescription, and a hearing was held on March 22, 2011, at which documentary evidence and affidavits were received. The WCJ granted the exception and dismissed Menard’s claim with prejudice. Menard now appeals, asserting that the WCJ erred: (1) in finding that the filing of the 1008 on November 5, 2009, did not interrupt the prescription of his claim for SEB; (2) in concluding that the prescription of his claim for SEB was interrupted on November 16, 2009, the date venue was transferred from District 4 to District 9; and (3) in concluding that prescription began to run on his claim for SEB on November 10, 2006 the day his last TTD benefits check was mailed to him, as opposed to November 14, 2006, the last date through which benefits were paid.

DISCUSSION

Menard asserts that we should review this matter as a question of law where our review is simply to determine whether the trial court was legally correct. However, we note that evidence and affidavits were introduced into evidence at the hearing.

If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Stobart v. State, through DOTD, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id., 617 So.2d at 882-83.

Rando v. Anco Insulations, Inc., 08-1163, p. 20 (La.5/22/09), 16 So.3d 1065, 1082. Thus, the proper standard of review in this case is the manifest error-clearly wrong standard.

We must first address the issue of venue in order to determine whether Menard’s filing of his complaint in District 4 interrupted prescription. Menard asserts that La.R.S. 23:1310 and 1310.3 place the burden and/or responsibility for assigning the matter to a district on the OWC such that his filing in District 4 should have ^interrupted prescription. Defendants, on the other hand, assert that claimants must either file with the OWC in Baton Rouge (to have it assigned to a proper district) or in a district of proper venue in order to interrupt prescription. We note that Menard did not mail his form to the OWC in Baton Rouge. Menard resided in Iberia Parish at the time of the alleged accident, the employer was located in Iberia Parish, and the alleged accident occurred in Iberia Parish. Iberia Parish, District 9, was the only parish of proper venue, and Menard’s filing in Lafayette Parish, District 4 did not interrupt the prescription of his claim for SEB. We agree with the WCJ that prescription was not interrupted until November 16, 2009, the date venue was transferred from District 4 to District 9. See La.R.S. 23:1310(A); 1310.3(B).

We must next determine when prescription on the claim for SEB begins to run: the date on which the last indemnity payment was mailed to claimant, November 10, 2006, or the date through which the last benefits were paid, November 14, 2006. Louisiana Revised Statutes 23:1209(A)(2) provides “[w]here such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).” Defendants contend that this means Me-nard’s claim for SEB had to be filed by November 10, 2009. Menard argues, however, that when a payment is made prospectively, prescription cannot begin to run until the last date through which the benefits are paid since no dispute arises during the period for which benefits are being paid.

The WCJ relied on Bertrand v. Patterson Truck Line, 138 So.2d 663 (La. App. 3 Cir.1962), and the “mailbox rule” to determine that final payment is made on the date that payment is mailed. Therefore, according to La.R.S. 23:1209(A)(2), prescription for SEBs begins at the time the last payment is mailed, even though the payment may | ^include a period beyond that date. We agree with the WCJ that La.R.S. 23:1209(A)(2) does not refer to the last day that the benefit was due or to the expiration of the benefits period but specifically states that the limitation begins at the time that the last payment is made. Thus, prescription on Menard’s claim began to run on November 10, 2006, and his filing in the wrong venue did not interrupt that prescription.

DECREE

For all of the foregoing reasons, the granting of the exception of prescription is affirmed. Costs of this appeal are assessed to Plaintiff-Appellant, Royd Me-nard.

AFFIRMED.

      . Menard asserts that the check was paid on November 9, 2006, but the record reflects that the check was issued on November 9 and mailed on November 10.