author: PAUL A. BONIN, Judge.

text:
    In re Medical Review Panel Claim of Zsa Zsa DUNJEE.
    No. 2010-CA-1217.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 26, 2011.

      C. William Bradley, Jr., Crystal E. Domreis, Bradley Murchison Kelly & Shea, LLC, New Orleans, LA, for Leonard Weather, Jr., M.D.
    George E. Cain, Jr., James P. Waldron, Frilot L.L.C., New Orleans, LA, for Louisiana Patient’s Compensation Fund.
    George L. Gibbs, Leefe Gibbs Sullivan Dupre’ & Aldous, LLC, Metairie, LA, for Marylynne Allred, Independent Administrator of Zsa Zsa Dunjee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| ¶At the conclusion of a bench trial, the district judge found that the medical treatment of Zsa Zsa Dunjee by Leonard Weather, Jr., M.D., fell below the standard of care required of Dr. Weather, a gynecologist. The court awarded general and special damages to Ms. Dunjee. Dr. Weather and the Louisiana Patients’ Compensation Fund, an intervenor, appeal the trial court’s finding that Dr. Weather deviated below the standard of care and that Ms. Dunjee was free from victim fault. Ms. Dunjee’s legal representative answered the appeal and argues that the general damages award of $100,000 is inadequate.

Upon our review of this matter, we conclude that the trial judge’s factual findings that Dr. Weather deviated below the standard of care and that Ms. Dunjee was free from fault are not clearly wrong and are reasonable. We also conclude that the trial judge did not abuse his vast discretion in the award of general damages. We therefore affirm the judgment and explain our decision below.

J¿

In this Part we treat, the two assignments of error raised by Dr. Weather and the PCF. Dr. Weather first assigns as error the trial court’s finding that he deviated below the standard of care required of him: first, by his failing to defer Ms. Dunjee’s elective surgery because her diabetes was uncontrolled, and, second, by his failing to immediately discontinue the procedure once he identified that Ms. Dun-jee’s fallopian tubes were inflamed and infected. Dr. Weather next assigns as error the trial court’s failure to allocate any fault to Ms. Dunjee. See La. Civil Code art. 2323, and La. C.C.P. arts. 1917 B and 1812 C(3).

We review both of these assignments under the manifest error/clearly wrong standard. “The relevant issue in a manifest error inquiry is not whether the finder of fact was right or wrong, but whether its decision was a reasonable one.” Marino v. Tenet Healthsystem Medical Center, 09-0915, p. 4 (La.App. 4 Cir. 11/24/09), 26 So.3d 297, 300. This well-recognized standard of review does not permit an intermediate appellate court, in its review of facts, to substitute its view for that of the fact-finder.

We conduct a complete review of all the record evidence in order to determine if the findings are reasonable and not clearly wrong. When the fact finding process has not been interdicted by legal error, absent exceptional circumstances, we defer to those conclusions of the fact-finder which are based upon its credibility determinations. Exceptional circumstances can arise when the testimony credited by the fact-finder is obviously contradicted or undermined by | Rdocumentary or objective evidence, or is internally inconsistent or implausible. “But where such factors are not present, and a fact-finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 845 (La.1989). See also La. Const. art. 5, § 10(B); Lam v. State Farm Mut. Auto. Ins. Co., 05-1139, p. 3 (La.11/29/06), 946 So.2d 133, 135. With these restrictions upon our review function, because there exist reasonable bases for these findings and they are not clearly wrong, we turn now to explain why we will not disturb the trial court’s determinations concerning fault on the part of Dr. Weather and the absence of fault on the part of Ms. Dunjee.

A

In this section we specifically address the finding that Dr. Weather’s treatment of Ms. Dunjee deviated below the standard of care required of gynecologic specialists. That specific finding, as we indicated above, is a finding of fact which is reviewed under the manifest error/clearly wrong standard. See McCarter v. Lawton, 09-1508, pp. 3-4 (La.App. 4 Cir. 7/21/10), 44 So.3d 342, 346.

Medical malpractice is defined in pertinent part by La. R.S. 40:1299.41 A(8) as: “Any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient ...” In a medical malpractice action, the plaintiff has the burden of proving by a preponderance of the evidence all of the following three elements set out in La. R.S. 9:2794:

|4(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill, or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have occurred.

See generally Pfiffner v. Correa, 94-0992 (La.10/17/94), 643 So.2d 1228; Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880.

Dr. Weather especially focuses on the second element which, he argues, was not proven in this case; he contends that he did not fail to use reasonable care and diligence along with his best judgment in the application of the knowledge-and skill possessed by gynecologists. We acknowledge that because the law does not require perfection in medical diagnosis and treatment, a doctor’s professional judgment and conduct must be evaluated in terms of reasonableness under circumstances then existing rather than in terms of the result or of subsequent events. See Ruiz v. Guette, 07-0989, p. 11 (La.App. 4 Cir. 4/23/08), 983 So.2d 959, 965.

In the usual medical malpractice case, a patient, as well as the fact-finder, is largely dependent upon the testimony of expert witnesses to establish the specialized standard of care. La. C.E. art. 702; Pfiffner, 94-0992, p. 8, 643 So.2d at 1230. See also Samaha, 07-1726, pp. 5-6, 977 So.2d at 884, and McCarter, 09-1508, p. 3, 44 So.3d at 346. Dr. Weather asks us to decide this based upon the superior credentials and opinion of one particular expert witness, Dr. Thomas Nolan. He argues that we should disregard the credentials and opinions of the | sother expert witnesses, who testified that in their opinions Dr. Weather deviated below the standard of care. But we do not perform our review function in such a selective way. Because expert witnesses can often disagree as to whether there has been a deviation below the standard of care, it is true that the weight to be given “to a particular expert’s testimony depends on the qualifications and experience of the expert and on any studies used by the expert to render an opinion.” Serigne v. Ivker, 00-0758, pp. 5-6 (La.App. 4 Cir. 1/23/02), 808 So.2d 783, 787-88. “In a medical malpractice action, the assessment of factual conflicts, including those involving the contradictory testimony of expert witnesses, lies within the province of the trier of fact.” Hubbard v. State, 02-1654, p. 11 (La.App. 4 Cir. 8/13/03), 852 So.2d 1097, 1103. When such a disagreement occurs, however, the trial court’s determination is given a great deal of deference. Jackson v. State Through Charity Hosp. of Louisiana at New Orleans, 94-2090, p. 4 (La.App. 4 Cir. 5/16/95), 655 So.2d 795, 797. “The determination of an expert’s credibility is also a factual question subject to the manifestly erroneous/clearly wrong standard of review.” Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1277 (La.6/21/91).

This is so because only the factfinder can be aware of the variations in demeanor and' tone of voice that bear so heavily on the listener’s understanding and belief in what is said. See Becker v. Tampira, 04-0200, pp. 17-18 (La.App. 4 Cir. 4/13/05), 901 So.2d 1157, 1166 (citing Ro sell, 549 So.2d at 844). When a fact-finder chooses between or among competing opinions of expert witnesses, we almost never find manifest error in that choice. See Beaucoudray v. Walsh, 07-0818, p. 13 (La.App. 4 Cir. 3/12/09), 9 So.3d 916, 924.

In this case, three board-certified gynecologists testified that in their opinion Dr. Weather’s treatment was substandard. In addition to that evidence, there was |fithe split Opinion of the Medical Review Panel. See La. R.S. 40:1299.47; Beaucoudray, 07-0818, p. 21, 9 So.3d at 928 (stating that the trial court is “legally required to admit the MRP opinion into evidence.”). Two of the three members opined that Dr. Weather deviated below the standard of care. The one member who opined that the evidence did not support the conclusion of deviation below the standard of care, Dr. Richard Dickey, was not a witness at trial.

Dr. Myron Moorehead was the only one of the three panelists to testify at trial. He had been joined by Dr. Pamela Bran-ning in rendering the following official majority opinion upon the panel’s review of this matter:

Laparoscopic myomectomy to remove a myoma 10 centimeters in size in conjunction with a colpotomy, also in the presence of extensive laproscopic surgery, is a deviation from the standard of care in a juvenile diabetic not in good control.

Dr. Dickey, the third member of the panel, issued the following opinion: the “evidence does not support the conclusion”.

The trial judge also heard the expert testimony of Dr. Leonard Lawson, the gynecologist who treated Ms. Dunjee in her hometown of Chicago, and the expert testimony of gynecologist Dr. Bruce Halbridge, Jr., and reviewed medical records.

Childless and approaching middle age, Ms. Dunjee desperately desired to become pregnant. She had consulted about her infertility problem with a gynecologist in Chicago. After his examination, he recommended that she undergo a hysterectomy. She was very upset by this and searched for a physician more sympathetic to her plight. A friend of hers in Chicago told her how Dr. Weather in New Orleans had performed surgery on her which resulted in a successful pregnancy.

|7Ms. Dunjee contacted Dr. Weather and made arrangements to travel to New Orleans for an outpatient elective surgery. She met Dr. Weather at his office, and he obtained a history from her and took some preliminary tests. She supplied information regarding her juvenile-onset diabetes but did not inform him that she had had pelvic inflammatory disease in the past, although she listed a genitourinary tract infection. Dr. Halbridge explained that this information about the earlier disease should have alerted Dr. Weather to the likelihood of scarring and infection resulting from that disease as a factor to consider together with the awareness of her diabetes with its attendant risks for infection and slow healing after surgery. Dr. Halbridge opined that Ms. Dunjee’s risk for infection post-operatively was “substantially increased” with uncontrolled diabetes, two or three times, or “possibly higher,” than the average risk.

The first of the two charges against Dr. Weather focuses on his care of the diabetic patient prior to and during surgery: he should have been aware of the swing in her blood glucose levels and should have deferred the elective surgery until the diabetes was under control. Ms. Dunjee is a “brittle diabetic.” The onset of her diabetes occurred when she was fifteen years old. The experts agree that a brittle diabetic is a person whose blood sugar level fluctuates from very high to low with lowered resistance to infection. These wide fluctuations in blood glucose concentrations are unpredictable. Just before her surgery the swing in Ms. Dunjee’s glucose readings ranged from 299 to 68. Dr. Hal-bridge testified that

[T]he standard of care in this circumstance where the blood sugar is just about 300, is to cancel the surgery, call in an internal medicine and get the patient’s diabetes under control and reschedule the surgery for some weeks later.... The blood glucose values have to be in the normal range at the time of surgery. The blood glucose 18values that are too high are associated with increased risk of infection and poor wound healing.

Because Dr. Thomas Nolan testified that he would perform surgery if a patient had a reading between 200 and 250, he considered Dr. Weather’s proceeding to be acceptable since Ms. Dunjee’s pulse was normal and she was not dehydrated. He conceded that a diabetic with poor control was at greater risk of infection from surgery, although diabetics undergo surgery regularly; infection is a risk of surgery whether on diabetic or non-diabetic patients. He conceded that the 299 reading should have prompted Dr. Weather at least to discuss the matter with Ms. Dun-jee before surgery. Dr. Weather did not discuss her diabetes with Ms. Dunjee.

Dr. Weather recalled that Ms. Dunjee had no complaints indicative of out-of-control diabetes when he examined her preop-eratively. He operates as part of a team, and he believes it was for the anesthesiologist to manage the glucose, together with anesthetic, during surgery; an anesthesiologist would have visited Ms. Dunjee pre-operatively and checked on any diabetes issues. Before her surgery she was administered an insulin shot together with an intravenous antibiotic, Unasyn.

Dr. Moorehead testified that, as he had opined as a member of the MRP, surgery should have, been deferred based on the brittle diabetes. Dr. Moorehead opined that for an elective procedure, the standard of care requires the patient to be in as good a medical condition as possible to tolerate the stress and trauma of surgery. Dr. Weather should have considered the pre-surgery swing in glucose |fllevel and sent Ms. Dunjee to an internist or endocrinologist. Dr. Moorehead concluded that the “total picture” was one of deviation below the standard of care.

Like Dr. Moorehead, Dr. Lawson, Ms. Dunjee’s gynecologist subsequent to Dr. Weather, testified that a diabetic with glucose levels over 200 is not in good control. Dr. Lawson called a level approaching 300 “at least twice what they should be”. He, too, would refer a diabetic patient to internal medicine specialists to manage the diabetes “to get them at a level that they feel comfortable that they could be cleared medically to have an elective surgical procedure.”

The second of the two charges focuses on Dr. Weather’s failure to stop the surgery when his exploration of Ms. Dunjee’s pelvis and abdomen revealed evidence of infection was a deviation below the standard of care. Dr. Lawson testified, as did Dr. Moorehead and Dr. Halbridge, that Dr. Weather’s continuing his surgical procedure, which lasted five hours and forty minutes, on the diabetic patient after he discovered infection led to Ms. Dunjee’s subsequent infection and at least two follow-up surgeries by Dr. Lawson.

Dr. Weather testified that he found adhesions from a previous infection when he examined Ms. Dunjee’s pelvis with a laparoscope. Prior to the surgery she was not febrile and had a normal white blood cell count, indicating no active infection. Dr. Halbridge agreed that there was no evidence of preoperative infection. Dr. Nolan testified that his review of the records showed no active ongoing infection in Ms. Dunjee’s pelvis because there was no pus or redness identified.

|inDr. Weather distinguished between his operating had he found an active ongoing infection — whereupon he would have stopped the procedure immediately — and his continuing the operation because he saw only signs of past infection — the “angel hair” or “frozen pelvis” of adhesions. Although the procedure went on for almost six hours, Dr. Weather characterized it as “minor surgery,” and determined to remove the fibroid inside the uterus, because its removal would increase Ms. Dunjee’s chance to become pregnant, the goal of the surgery.

On the issue of exacerbating infection by continuing the surgery, Dr. Nolan found no evidence in the records that liquid infection spilled from the transected Fallopian tubes; Dr. Weather had injected Hys-kon and methylene blue into the tubes before opening them. Dr. Halbridge, however, testified that the ends of the fallopian tubes were clubbed, and the tubes were filled with infected fluid, “and he [Dr. Weather] allowed the fluid to drain and he created openings at the end of each tube ... he cut a hole in the back part of the vagina ... from the pelvic cavity so that he could create a drain.” The standard of care, Dr. Halbridge stated, was to “remove the instruments, remove the laparoscope, sew the little holes in the belly up and then treat the patient with antibiotics ... Stop the operation. Go no further.” The extensive surgery could have been performed “at another time after the infection was killed and cured and her diabetes was controlled.” He agreed with the majority of the MRP.

A tell-tale sign that the elective outpatient surgery had encountered complications was the fact that Ms. Dunjee, while still unconscious, was unexpectedly transported to the hospital for observation. She was startled to learn of her whereabouts.

| nAlthough there was contradictory expert testimony (as there often is), we find that the trial judge’s determination of which of the experts to rely upon was reasonable and not clearly wrong. Also, we find that, based upon his resolution of the contradictory expert opinion evidence, his factual findings that Dr. Weather deviated below the standard of care for a gynecologist is reasonable and not clearly wrong.

B

In this section we specifically address Dr. Weather’s contention that the trial court erred in refusing to allocate any fault to Ms. Dunjee. “Whether comparative fault applies in a given case is a factual determination governed by the manifest error standard of review.” Wallace v. Howell, 09-1146, p. 5 (La.App. 4 Cir. 1/13/10), 30 So.3d 217, 219; see also Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.5/24/85).

Dr. Weather raised the affirmative defense of the fault of the victim, alleging that Ms. Dunjee failed to mitigate by not taking prescribed antibiotic medications. See La. C.C.P. art. 1005. The fault of the victim must be proved by a preponderance of the evidence. Flemings v. State, 07-1290, p. 13 (La.App. 4 Cir. 8/26/09), 19 So.3d 1220, 1229. “The party raising the defense ... bears the burden of proving victim fault.” Moffitt v. Sewerage & Water Bd. of New Orleans, 09-1596, p. 12 (La.App. 4 Cir. 5/19/10), 40 So.3d 336, 343.

If Dr. Weather proved that Ms. Dunjee was at fault, then he would be entitled to a reduction in the amount of damages for which he would be obligated to her. “If a person suffers injury ... as the result partly of his own negligence and | 12partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury.” See La. Civil Code art. 2323 A. In the medical malpractice context, we considered the healthcare provider’s argument that the patient too was at fault, stating that

The failure of an injured victim to exercise the care and diligence which would be used by a man of ordinary prudence under like circumstances to submit to reasonable medical treatment recommended for his improvement by competent medical authorities constitutes victim fault. See La. C.C. art. 2323.

Flemings, 07-1290, p. 13, 19 So.3d at 1229. See, e.g., Abdullah v. Simmons, 98-0564 (La.App. 4 Cir. 9/13/00), 772 So.2d 698, 703.

As we understand Dr. Weather’s argument, he contends that Ms. Dunjee is at fault for failing to properly take an oral antibiotic, Floxin, which he prescribed for her. He asserts that had she taken the medication, her infection would have been controlled. He emphasizes for us that Ms. Dunjee had some special knowledge about Floxin because she had been a pharmaceutical representative for this drug and, moreover, that she would appreciate the importance of preventing infection through use of the antibiotics.

Even though the trial judge did not allocate any fault to Ms. Dunjee, we consider various factors in evaluating whether the fact-finder was clearly wrong in not assessing fault on the part of this patient. We are guided by the touchstone factors set out by the Louisiana Supreme Court:

In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
[ iaIn assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Watson, 469 So.2d at 974.

First, we are uncertain whether Dr. Weather established that Ms. Dunjee did not take the antibiotics. She testified that she consumed the samples of Floxin that he had hand-delivered to her. We are not unmindful that Ms. Dunjee at first denied that Dr. Weather had prescribed additional doses of antibiotics, but later, after consulting her written memoir, changed her testimony to state that he had prescribed antibiotics and she had filled the prescription upon her return to Chicago a day or so later.

But even if she had not taken the antibiotics, Dr. Nolan testified that Ms. Dunjee was likely to get an infection with or without antibiotics. The only physician who testified that Ms. Dunjee was at fault for not taking the prescribed antibiotics is Dr. Weather. (We note that in his reasons for his dissenting MRP Opinion, Dr. Dickey, who did not testify, wrote that “[t]he outcome could well have been different if the patient had taken antibiotics [sic] as prescribed by Dr. Weather.” The trial judge likely disregarded this comment as being beyond the 114scope of a panel’s statutory authorization.) Considering the importance which Dr. Weather alone attached to this issue, we cannot overlook that not even he was able to substantiate in his medical records that he did actually prescribe the antibiotics.

Ms. Dunjee had been instructed to return to Dr. Weather’s office in two days for a checkup, to walk, and to maintain her diet and monitor her blood sugar levels; she did not return to Dr. Weather’s office. Dr.Weather, however, visited her at her hotel room and at a friend’s home before her return to Chicago. Upon her return home she immediately consulted Dr. Lawson, and took antibiotics. Then, in about three weeks, Ms. Dunjee suffered excruciating pain in her abdomen on October 10, 1991, so severe that she could not stand, and even the crossing of hospital floor thresholds in a wheelchair caused her severe pain. Dr. Lawson performed emergency surgery for her infection/peritonitis on October 11,1991.

In any event, the trial judge in this case resolved the issue by observing that none of the medical experts attributed any fault to the patient for her injuries. Thus, although Ms. Dunjee may have had greater knowledge than the ordinary patient about the efficacy of antibiotics, the trial judge was reasonable in deferring to the expertise of the physicians about the risk or significance of any failure of Ms. Dunjee to fill any prescription for antibiotics which Dr. Weather may have written.

I15C

In conclusion, we find no clear error in the trial judge’s findings that Ms. Dunjee’s treatment by Dr. Weather deviated below the standard of care and that Ms. Dunjee was free from fault. These are reasonable findings.

II

In this Part we address the sole assignment of error raised by the plaintiffs answer to the appeal. See La. C.C.P. art. 2133. Ms. Dunjee’s representative complains that the $100,000 awarded for general damages is inadequate and should be increased to $300,000.

“In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” La. Civil Code art. 2324.1. “[W]e review an award of general damages under the abuse of discretion standard of review which is even more deferential to the ... [factfinder] than the manifest error standard.” Joseph v. Archdiocese of New Orleans, 10-0659, p. 4 (La.App. 4 Cir. 11/10/10), 52 So.3d 203. The Louisiana Supreme Court described the extent of a trial court’s discretion in assessing general damages: “[T]he discretion vested in the trier of fact is ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993).

The Louisiana Supreme Court stated in Youn that when reviewing a general damage award, the first inquiry is whether the particular effects of the particular 1,(¡injuries to the particular plaintiff are such that there has been an abuse of the “much discretion” vested in the finder of fact. Youn, 623 So.2d at 1260; see also Williams v. Stewart, 10-0457, p. 22 (La.App. 4 Cir. 9/22/10), 46 So.3d 266, 280.

Ms. Dunjee’s representative argues that the general damages award is inadequate because the trial judge refused to award compensation for Ms. Dunjee’s loss of chance to become pregnant. She contends that Dr. Weather’s malpractice deprived her of an admittedly less-than-even chance of becoming pregnant. Such a loss, if proved, is compensable as general damages. In Graham v. Willis-Knighton Medical Center, the Louisiana Supreme Court, observing that “many medical malpractice cases ... involve the loss of a chance of survival or of a better chance of recovery,” recognized the loss of a better chance of recovery and treated such a loss in the same way the loss of a less-than-even chance of survival is treated. Graham v. Willis-Knighton Medical Center, 97-0188, p. 16 (La.9/9/97), 699 So.2d 365, 372-373. “[T]he -loss of a less-than-even chance of survival is a distinct injury com-pensable as general damages ...” Smith v. State, Dept. of Health and Hospitals, 95-0038 (La.6/25/96), 676 So.2d 543, 548; see also Hargroder v. Unkel, 39,009 (La.App.2d Cir.10/29/04), 888 So.2d 953 (award for loss of a chance of a better outcome because of physician’s negligence in treating a stroke was one of general damages).

Because there had been no pretrial settlement with Dr. Weather, at the trial Ms. Dunjee bore the burden of proving by a preponderance of the evidence that she had a chance of pregnancy and that chance was lost due to Dr. Weather’s fault. See, e.g., Braud v. Woodland Village, L.L.C., 10-0137, p. 4 (La.App. 4 Cir. 12/8/10), 54 So.3d 745 (and authorities there cited); cf. Graham, 97-0188, pp. 17-18, 699 So.2d at 373 (declining to decide to attribute the burden of proof to a party where there had been a $100,000 settlement with the healthcare provider and the proof was established irrespective of attribution).

Here, the trial judge found as a fact that, pre-surgery, Ms. Dunjee “had. no real chance of becoming pregnant.” Thus, he wrote, “[t]he court finds that plaintiff has failed to establish, by a preponderance of the evidence, that she lost a real chance of becoming pregnant.” We review this factual finding under the manifest error standard.

As we noted earlier, before seeing Dr. Weather, Ms. Dunjee was examined by Dr. Allen Charles, a gynecologist in Chicago, who informed Ms. Dunjee that she had a fibroid and needed a hysterectomy; without a uterus, conception is impossible. Rejecting this medical advice, Ms. Dunjee sought a physician who might give her some hope of becoming pregnant.

We have no doubt that Ms. Dunjee suffered considerable distress on account of her infertility, which she attributed to Dr. Weather’s fault. She treated with a psychiatrist weekly for three months. She testified that “someone special,” the man she had hoped would be her partner in having a child, left her when he learned that she was unable to have a child, causing her great sorrow. Having labored with the knowledge that her Type I diabetes was a permanent disease since she was fifteen years old, Ms. Dunjee’s hopes to triumph over it by successfully bearing a child were dashed, and she was depressed regarding the hardship of her diabetic condition and her health.

But there are no record facts to support the conjecture that even if Dr. Weather had not deviated below the standard of care Ms. Dunjee would have been able to conceive. None of the physicians (other than Dr. Weather) expressed any 11smedical belief that Ms. Dunjee had any chance to conceive before she underwent elective surgery with Dr. Weather. Based upon the entire record, we conclude that the trial judge’s finding that Ms. Dunjee did not lose a chance to become pregnant is not clearly wrong and is reasonable. Thus, the trial judge was reasonable in not awarding Ms. Dunjee any general damages for the loss of such a chance.

Ms. Dunjee, however, did suffer both physical pain and mental anguish as a result of Dr. Weather’s malpractice. She endured physical pain which increased to the point of agony: she testified, “I was doubled over in pain at home, crawling around on the floor,” at which time Dr. Lawson admitted her to Rush Presbyterian Hospital in Chicago and performed emergency surgery there on October 11, 1991. He found abscesses on both sides of the pelvis and uterus, and infection, peritonitis, in her abdomen. Ms. Dunjee spent twelve days in the hospital and six weeks unable to work. In May, 1992, Dr. Lawson performed a second surgery, as a follow-up from the first surgery, as a result of Ms. Dunjee’s ongoing complaints of pelvic pain. She was unable to work for two months after the 1992 surgery. In addition to the extended physical pain and scarring on her abdomen necessitated by the surgery to correct Dr. Weather’s errors, Ms. Dunjee suffered mental anguish, humiliation, and inconvenience. The abdominal scar caused her to be unable to wear a bikini, and to feel herself no longer attractive. The subsequent operations to treat the infection and scarring exacerbated the mental and physical wounds she suffered.

Considering the trial court’s rejection of compensating Ms. Dunjee for a speculative loss of a chance to become pregnant and further considering its general damages award for the real injuries and their effects which Ms. Dunjee suffered in these particular circumstances, we find that the trial judge did not abuse his vast 1! ¡¡discretion in the award of $100,000. The award “bear[s] a reasonable relationship to the elements of the proved damages.” Youn, 623 So.2d at 1261 (emphasis added). Because of our holding, we decline to resort to a review or consideration of prior awards. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

DECREE

The judgment in favor of Marylynne Allred as independent administratrix of the estate of Zsa Zsa Dunjee and against Leonard Weather, Jr., M.D., and the Louisiana Patients’ Compensation Fund is affirmed. All costs of this appeal are taxed to Dr. Weather and the PCF. See La. C.C.P. art. 2164.

AFFIRMED.

      . Between the close of the trial and the rendition of the first judgment, Ms. Dunjee died. Maiylynne Allred, her legal representative, was substituted as the party plaintiff and the judgment creditor by a judgment modified in the trial court. See La. Civil Code art. 2030 and La. C.C.P. arts. 801 and 1951; see also Konneker v. Sewerage & Water Board of New Orleans, 96-2197, p. 2 (La.App. 4 Cir. 11/19/97), 703 So.2d 1341, 1343.

      . The panel or a panel member is authorized to opine on the fault of the physician, not the patient. See La. R.S. 40:1299.47 N(6):
      The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence and after any examination of the panel by counsel representing either party ... the panel shall ... render one or more of the following expert opinions ... (a) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
      (b) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
      (c) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.

      . Ms. Dunjee denied receiving any written postoperative instructions; Dr. Weather testified that his office forms with postoperative instructions were given to Ms. Dunjee, at her preoperative visit. Her circumstances are unusual because she was not released from the out-patient location, but had been transported to the hospital.

      . The only case which Ms. Dunjee's representative asked us to compare is Miller v. Lammico, 07-1352 (La.1/16/08), 973 So.2d 693, for her proposal that the general damages award should be increased to $300,000. Our resolution of the loss of chance of becoming pregnant issue renders Miller inapplicable to the facts of this case.


source: Caselaw Access Project

license: Public Domain

text:
    GULF COAST BANK AND TRUST COMPANY v. Elizabeth Elmore, Wife of/and Ferdinand G. D’ORVILLE, III.
    No. 2010-CA-1237.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 26, 2011.

      Edwin M. Shorty, Jr., Michael J. Hall, Tony Dooley, Shorty Dooley & Hall, L.L.C., New Orleans, LA, for Appellant, Norbert Simmons.
    Wayne Anthony Maiorana, Jr., Newman Mathis Brady & Spedale, APLC, Metairie, LA, for Appellee, Gulf Coast Bank and Trust Company.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

I,Gulf Coast Bank & Trust Company loaned Elizabeth and Ferdinand D’Orville money. The loan was secured by a mortgage on the D’Orvilles’ home and by a guaranty signed by Norbert Simmons. The loan became delinquent, and ultimately the D’Orvilles’ debt to the bank was discharged in bankruptcy. Following the foreclosure and sheriffs sale of the home, the bank sought to collect the resulting deficiency from Mr. Simmons. The trial court granted summary judgment in favor of the bank and against Mr. Simmons in the amount of the deficiency. Mr. Simmons appeals the summary judgment.

Mr. Simmons’ sole assignment of error is that the trial court failed to find that a genuine issue of material fact existed as to whether the parties had settled or compromised his guaranty obligation and thereby released Mr. Simmons from his guaranty obligation, which finding would have precluded summary judgment. Because we find on our de novo review that Mr. Simmons owes the debt and that his obligation was not extinguished by compromise, we affirm the summary judgment in the bank’s favor. We provide our reasoning in greater detail below.

I

The D’Orvilles borrowed the principal amount of $344,365 from the bank. At the time they promised to re-pay that amount with interest, and, in the event of delinquency or acceleration of the debt, attorneys’ fees, late fees, escrow shortages, courts costs and sheriffs costs. They signed a note which evidenced the indebtedness. The note was secured by a mortgage on their home in the Lakefront area of New Orleans. As a condition for loaning this amount to the D’Orvilles, the bank required and obtained from Mr. Simmons his signed guaranty, by which guaranty Mr. Simmons “absolutely and unconditionally” obligated himself “solidarily” with the D’Orvilles for their indebtedness to the bank.

Mr. Simmons does not dispute that the bank loaned the money to the D’Orvilles and that he signed the guaranty. Aso, he does not dispute that, about two years later, the D’Orvilles defaulted on their obligation to the bank and the bank instituted foreclosure proceedings via executiva with appraisement against them, but not Mr. Simmons. See generally La. C.C.P. art. 2631 et seq. When the D’Orvilles could not be located in order to effect service, an attorney at law was appointed to represent them. See La. C.C.P. arts. 2674(1), 5091 A(1)(a) and 5251(1). The property was appraised for $421,000.

Eventually the property was sold at sheriffs auction to Edward Neely, Mr. Simmons’ nephew, for $400,000. Ater deducting his costs, the civil sheriff remitted $366,735 to the bank.

13Ater the sheriffs sale on December 7, 2007, in order to collect the resulting deficiency, the bank converted the executory proceedings to ordinary proceedings by filing a supplemental petition, which alleged the foregoing facts, and named only Mr. Simmons a defendant. See La. C.C.P. arts. 2771 and 2772. Mr. Simmons answered the petition with only a general denial. See La. C.C.P. arts. 1003 and 1004.

The bank moved for summary judgment, which was opposed by Mr. Simmons. The district court granted summary judgment and rendered a money judgment against Mr. Simmons for the amount of the D’Or-villes’ debt, subject to the $400,000 credit for the proceeds from the sale of their house.

On appeal, Mr. Simmons argues that the trial court erred as matter of law because his affidavit references discussions and email correspondence which' intimate or are suggestive of or reasonably might infer that a compromise between the bank and him occurred and that this constitutes a lingering genuine issue of material fact. Between the time of the filing of the foreclosure proceeding and the sheriffs auction, Mr. Simmons forwarded the following email to the president of the bank:

Unfortunately I am still in Australia and my telephone access is spotty; so I am writing to confirm my intent to have the D’Orville note purchased. I think it may be best to all [the bank] to continue the foreclosure so we get an absolutely clear title.
My thought is to have my nephew, Edward Neely enter a bid for the property in the amount of the bank’s bid. Mr. Neely will pay $375,000 of the bid and I will pay the balance to the bank.
Please ask your attorney to advise me of the best procedure to accomplish this.
Also please ask him to communicate via e-mail; and remember that Australia is 13 hours AHEAD of New Orleans.

The only documented response of the bank president was to direct the loan officer to forward the e-mail to the bank’s attorney.

In his affidavit opposing the motion for summary judgment, Mr. Simmons testified that “he was repeatedly informed, advised and led to believe by [the bank president] and other representatives of [the bank] that if the subject property was sold at auction for $400,000, [the bank] would not seek a deficiency judgment against” him.

II

Mr. Simmons specifically argues in his brief that the email, along with his testimony, “evidences at a minimum, negotiations towards a compromise. This [he argues] creates a genuine issue of material fact as to whether a compromise was ultimately reached between the bank president and Mr. Simmons.” We disagree.

Mr. Simmons’ guaranty obligation to the bank is the obligation of a surety. See First Nat Bank of Crowley v. Green Garden, 387 So.2d 1070, 1073 (La.1980). Thus, Mr. Simmons is bound to the bank to fulfill the obligation of the D’Orvilles upon their failure to do so by giving “full performance of the obligation.” See La. Civil Code arts. 3035 and 3045. He must fulfill their obligation despite their bankruptcy discharge. See La. Civil Code art. 3046. The obligation arising from borrowing money is fulfilled by its repayment. See La. Civil Code art. 2907. Mr. Simmons admits that his obligation was not extinguished through performance, i.e. repayment. See La. Civil Code art. 1854 (“Performance by the obligor extinguishes the obligation.”).

Parties can, of course, contract to extinguish an obligation. See La. Civil [Code art. 1906. Generally, a surety’s obligation can be extinguished just as other conventional obligations are extinguished. See La. Civil Code art. 3058. A compromise can be just such an agreement to extinguish an obligation: “[a] compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” La. Civil Code art. 3071.

But Mr. Simmons did not plead the affirmative defense of extinguishment of the obligation and did not plead facts to support such a plea. La. C.C.P. art. 1003 provides that the answer “shall set forth all affirmative defenses as required by Article 1005.” And La. C.C.P. art. 1005 requires that “[t]he answer shall set forth affirmatively ... extinguishment of the obligation in any manner”. Thus, in order to assert that his obligation as to the D’Or-villes’ surety was extinguished, it was necessary for Mr. Simmons to plead the extin-guishment as an affirmative defense. Or it was necessary that Mr. Simmons plead the peremptory exception of res judicata. See La. C.C.P. art. 927 A(3); see also La. R.S. 13:4231. This is because “[a] compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised.” La. Civil Code art. 3080. See also Ortego v. State, Dept. of Transportation and Devp., 96-1322 (La.2/25/97), 689 So.2d 1358, 1364 (“A valid compromise may form the basis of a plea of res judicata.”)

In the absence of an affirmative defense in the answer or of an exception of res judicata, the matter of “compromise” is not an issue raised by the pleadings. | fiThus, the bank’s burden of proof on its demand to collect on a promissory note is not difficult. The lender “must merely produce the note in question to make out a pnma facie case. The burden then shifts to the defendant to prove any affirmative defenses.” Colonial Mortgage & Loan Corp. v. James, 01-0526, p. 4 (La.App. 4 Cir. 3/6/02), 812 So.2d 817, 820. This same rule applies to the guarantor or surety. See Merchants Trust & Savings Bank v. Olano, 512 So.2d 1218, 1219-1220 (La.App. 5th Cir.1987).

Without a plea of compromise, the evidence of the kind submitted by Mr. Simmons which might arguably tend to prove that the debt was extinguished is irrelevant because it is of no consequence to the determination of the likelihood of whether the bank at trial could make out a pnma facie case that the debt is owed. See La. C.E. arts. 401 and 402. If Mr. Simmons’ pleadings have not put the extinguishment of the obligation at issue (and they did not), his affidavit does not show that there is a genuine issue of material fact. See La. C.C.P. art. 966 B. “A fact is ‘material’ if it is one that would matter at trial on the merits.” Suire v. Lafayette City-Parish Consolidated Government, 04-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48.

Because the bank clearly proved on its motion with its supporting affidavits that the D’Orvilles signed the promissory note and that Mr. Simmons signed the solidary guaranty, it was entitled to judgment against Mr. Simmons in the amount of the deficiency.

J¿n

We deem it proper to further explain why the testimony of Mr. Simmons in his affidavit would not support a remand to the trial court in order to allow him ah opportunity to amend or supplement his answer with the affirmative defense. See La. C.C.P. arts. 1151, 1153, and 1155. See also, e.g., Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981), and Hibernia National Bank v. Antonini, 33,436, pp. 6-8 (La.App. 2 Cir. 8/23/00), 767 So.2d 143, 146-148.

“A party who asserts that an obligation is null, or that it has been modified or extinguished, must prove the facts or acts giving rise to the nullity, modification, or extinction.” La. Civil Code art. 1831; see also American Bank v. Saxena, 553 So.2d 836, 844 (La.1989). Thus, Mr. Simmons must prove the existence of the contract of compromise. “A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.” La. Civil Code art. 3072. But Mr. Simmons has not identified any writing which constitutes the compromise.

It is true that the compromise need not be contained in a single written instrument. Felder v. Georgia Pacific Corp., 405 So.2d 521, 523 (La.1981). “A contract is formed by the consent of the parties through offer and acceptance.” La. Civil Code art. 1927. “It would suffice that there be a written offer signed by the offerer and a written acceptance signed by the acceptor, even if the offer and acceptance are contained in separate writings.” Felder, supra, 405 So.2d at 524. While Mr. Simmons’ email might arguably be considered his “offer,” surely the |sbank president’s receipt of that email and his email merely directing that it be forwarded to the bank’s attorney, does not constitute “acceptance.”

As we have previously explained, the Supreme Court in Felder “was' not signal-ling a lessening of the requirement that the acceptance and acquiescence therein of both parties be clearly and unequivocably [sic] expressed.” Townsend v. Square, 94-0758, p. 6 (La.App. 4 Cir. 9/29/94), 643 So.2d 787, 790. Just as in Townsend, the bank president’s email is “not sufficient evidence of [its] acquiescence in such an agreement.” Id.

Nonetheless, Mr. Simmons argues that his email is suggestive of the fact that negotiations toward a compromise had begun and that this raises a genuine issue of material fact that a compromise was ultimately reached. But he ignores the formal requirement that the bank’s acceptance of any offer of compromise must be in writing. See La. Civil Code arts. 1927 and 3072. Thus, there is no such thing as an oral compromise or compromise through discussion alone. “A compromise agreement which .is not reduced to writing and evidenced by documentation signed by both parties is unenforceable.” Hawthorne v. Barbier, 02-1903, p. 3 (La.App. 4 Cir. 2/19/03), 841 So.2d 28, 29, citing to Felder, supra. The writings identified by Mr. Simmons (even taken together) do not evidence that the consent of both parties to a compromise was obtained through an offer and acceptance. “[W]hether a compromise was ultimately reached between the bank president and Mr. Simmons” could only be proven by a written contract.

In the absence of identifying a written compromise, Mr. Simmons has failed to raise a genuine issue of material fact which would preclude summary judgment.

J¿V

“An appellate court reviews a motion for summary judgment de novo, using the same criteria applied by a trial court to determine whether summary judgment is appropriate.” Franklin Credit Management Corp. v. Gray, 07-1438, pp. 4-5 (La.App. 4 Cir. 1/14/09), 2 So.3d 598, 601. “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966 A(2).

In order to obtain summary judgment, the bank was required to establish that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material facts, and that mover is entitled to judgment as a matter of law.” La. |10C.C.P. art. 966 B. The bank clearly established the amount of the outstanding deficiency remaining on the debt after crediting the proceeds of the sheriffs sale and clearly established that Mr. Simmons as solidary surety was bound to repay the bank the deficiency. See Franklin Credit, supra; Colonial Mortgage, supra, and Merchants Trust, supra.

In order to defeat summary judgment, the burden then shifted to Mr. Simmons, who “may not rest upon the mere allegations or denials of his pleading.” La. C.C.P. art. 967 B. Mr. Simmons needed “competent evidence showing the existence of specific facts establishing a genuine issue of material fact”; simply showing “the presence of disputed facts” is insufficient if there is no legal issue presented by those contested facts. Franklin Credit, supra, 2 So.3d at 603.

Had Mr. Simmons either pleaded the affirmative defense of extinguishment of the obligation or peremptorily excepted on the grounds of res judicata, he would have had the burden of proof. But it is clear “that there is an absence of factual support for one or more elements essential to [Mr. Simmons’] defense” on which he would have had the burden of proof at the trial. La. C.C.P. art. 966 C(2); see also King v. Parish Nat’l Bank, 04-0337, pp. 7-8 (La.10/19/04), 885 So.2d 540, 545-546. Thus, no genuine issue of material fact exists as to the defense that his guaranty obligation was extinguished by compromise.

Because there is no genuine issue of material fact concerning Mr. Simmons’ liability on the D’Orvilles’ note and his guaranty, summary judgment is appropriate. See Saxena, supra, 553 So.2d at 845. After our de novo review of | nthe summary judgment, we conclude 'that the trial court correctly rendered judgment in favor of the bank and against Mr. Simmons for the full amount of the outstanding deficiency.

DECREE

The judgment rendered and signed on May 14, 2010, is affirmed.

AFFIRMED.

      . The district court's judgment, with the consent of the bank, gives Mr. Simmons a credit fbr the entire $400,000.

      . The D’Orvilles' debt to the bank had in the meantime been discharged in bankruptcy.

      . La. Civil Code art. 1906 provides: “A contract is an agreement by two or more persons whereby obligations are created, modified, or extinguished.”

      . See La. C.C.P. art. 1005 which provides in pertinent part: “If a party has mistakenly designated an affirmative defense as a peremptory exception, ..., or a peremptory exception as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation."

      . The strength of the holding in Vermilion Corp. has been diluted by the subsequent amendments to La. C.C.P. art. 966. See JCM Const. Co., Inc. v. Orleans Parish School Board, 02-0824, p. 41 (La.App. 4 Cir. 11/17/03), 860 So.2d 610, 634.

      . We have not overlooked an alternative theory to preclude summary judgment which Mr. Simmons raises for the first time on appeal. "Absent a valid settlement agreement,” he writes in his brief, "Mr. Simmons avers a valid oral agreement was reached regarding the discharge of the debt once he was contacted about the pending foreclosure.” Ordinarily, we would not even consider such an argument. See Rule 2-12.4, URCA; Council of the City of New Orleans v. Washington, 09-1067 (La.5/29/09), 9 So.3d 854, 856 ("The well-settled jurisprudence of [the Louisiana Supreme Court] establishes that as a general matter, appellate courts will not consider issues raised for the first time, which are not pleaded in the court below and which the District Court has not addressed.”). He now argues that American Bank & Trust Co. v. Int’l Dev. Corp., 506 So.2d 1234, 1236 (La.App. 1st Cir.1987) supports his argument that parol evidence is admissible to establish that the bank orally modified his written guaranty. We have closely examined the trial court record and note that not even one time was it ever suggested that the bank had agreed to limit Mr. Simmons’ guaranty to obligation to $400,000, subject to a credit on the proceeds of the sheriff’s auction, and Mr. Simmons had ample opportunities to raise the issue. The suit against Mr. Simmons was filed in June 2008. Although Mr. Simmons refused long-arm service, he made a general appearance the following months at which time he requested an additional thirty days within which to answer the petition. He nonetheless failed to answer within the delay granted to him and two months after the expiration of that time period a default judgment was entered against Mr. Simmons. The day following the entry of the preliminary default, Mr. Simmons filed his answer, which as we have noted asserted no affirmative defenses.
      The following month the bank filed its first motion for summary judgment, which was set for hearing sixty days later. In its supporting memorandum the bank noted that Mr. Simmons had asserted no affirmative defenses. At Mr. Simmons’ request the hearing on the motion was continued without date.
      Two months later, the bank re-filed its motion which was set for hearing thirty days later. The bank again observed that no affirmative defenses had been asserted. Less than a week before the scheduled hearing Mr. Simmons again requested a continuance; in his motion he stated that he needed time "to execute an Affidavit in connection with this matter.” The hearing was against postponed — this time for sixty days. Even though Mr. Simmons did not amend or supplement his answer, and did not submit any affidavit, his counsel did dispute an alleged discrepancy in the interest charged, the application of the funds received from the sheriff's sale, the costs of force-placed insurance, and delay in the foreclosure. But he was silent regarding a modification of the guaranty. After more than one year after the suit was filed against Mr. Simmons, the trial court denied the bank’s motion for summary judgment.
      The following year the bank re-filed its motion for summaty judgment which was set for hearing sixty days later. Less than three days before the hearing Mr. Simmons requested and obtained a sixty-day postponement of the hearing. Though Mr. Simmons executed an affidavit, he still did not amend or supplement his answer to assert any affirmative defense and his written legal argument made no reference to any agreement by the bank to reduce his exposure on his guaranty. To summarize, not until April 10, 2010 — nearly two years after he was sued — did Mr. Simmons even mention in passing that the bank had modified his guaranty obligation.


author: ARMSTRONG, Chief Judge.

text:
    B. SAMUEL COMPANY, INC. v. XAVIER UNIVERSITY OF LOUISIANA.
    No. 2010-CA-1145.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 2011.

      Philip C. Ciaccio, Jr., Gretna, LA, for Plaintiff-Appellant, B. Samuel Company, Inc.
    F. Evans Schmidt, Koch & Schmidt, LLC, New Orleans, LA, for Defendant-Appellee, Xavier University of Louisiana.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR.).
   ARMSTRONG, Chief Judge.

| TPlaintiff-appellant, B. Samuel Company, Inc. (“Samuel”), appeals a judgment dated August 31, 2009, dismissing its claims pursuant to a Motion of Involuntary Dismissal filed by the defendant-appellee, Xavier University of Louisiana.

Samuel is a retail and wholesale distributor of building materials located in a warehouse at 939 South Jefferson Davis Parkway in New Orleans. The warehouse is bounded on three sides by the defendant’s property, including a Xavier dormitory.

Pursuant to Article 15.2.6 of the City of New Orleans’ (“City”) Comprehensive Zoning Ordinance (“CZO”), Xavier submitted a parking plan to the City in 2002 indicating that at least 225 parking spaces would be available for a dormitory to be built on the lot behind plaintiffs warehouse, the same dormitory referred to in the immediately preceding paragraph. The dormitory was built and the parking lot was made available.

Shortly after Hurricane Katrina, Xavier converted the dormitory parking lot into a FEMA trailer park, thereby substantially reducing the number of parking spaces available to Xavier students. Samuel contends that this puts Xavier out of 12compliance with the CZO. As a result, students began parking in freight zone areas as well as Samuel’s own parking lot.

Samuel contends that for the first week after school commenced, a campus security officer prevented students from parking illegally, but after that week the campus policeman ceased his efforts and the students recommenced their illegal parking.

As a result of the students illegal parking, Samuel alleges that it was forced to hire off-duty police officers to patrol the property at a cost of $1,300.00 per week, which Samuel includes as an item of damage in this suit which it filed on September 8, 2006.

Xavier filed exceptions of no cause of action and mootness, which were denied. Xavier’s application to this Court for writs was denied.

A judge trial ensued.

The trial judge noted in his written reasons for judgment that Mr. Barry Samuel, the president and owner of the plaintiff company, testified that the conversion by Xavier of the student dorm parking lot into a FEMA trailer park resulted in a reduced number of parking spaces, causing people to illegally park in the .freight zone areas adjacent to his business and also in his business parking lot.

However, the trial judge also noted that Mr. Samuel,

“admitted that it was both students and non-students illegally parking. Further, he testified that there were missing no-parking signs in the area that had not been replaced by the City.”

Mr. Samuel testified that there' were missing “no parking” and “freight zone” signs. The significance of the missing signs is that there was no notice to people I ¡¡that they should not park in certain areas, thereby contributing to the parking problems in the area.

Ultimately, the trial court found that the plaintiff “failed to establish ... a causal connection between the presence of FEMA trailers in a University parking lot and the choice of individual third party individuals to violate the law by parking illegally.”

Mr. Samuel testified that after the campus security officer stopped preventing the students from parking illegally:

“Everybody was stopping or parking or blocking the driveway, waiting for somebody to come out the dormitory or parking on the corner too close to the corner. Nobody could turn.”

Mr. Samuel testified that-in total he paid $52,000.00 for police details to control the parking over a 40-week period.

Mr. Samuel testified that the volume of his business increased after Hurricane Katrina and he did not attempt to show that the parking problems resulted in an economic loss to his company other than the $52,000.00 expense that was incurred by the company for private detail police officers needed to supervise the parking.

Mr. Samuel testified that he filed no complaint with the Director of Safety and Permits concerning the failure of Xavier to live up to what its student parking obligations allegedly were. Mr. Samuel testified that he invoked no legal process to prevent Xavier from utilizing the parking lot for FEMA trailers. Mr. Samuel explained:

First of all, my attorney’s office was inundated with water. I didn’t have an attorney to go to.... The courts weren’t open to file such action. They said that they opened in Gonzales. Then they moved to Baton Rouge. ^You’re asking me to file a lawsuit when I’m trying to clean my business up.

Mr. Samuel also admitted that he had been complaining about parking issues long before the parking lot was utilized by FEMA trailers.

Mr. Samuel complained about an altercation he and his son had one day with a man blocking his driveway, but when asked on cross-examination if he knew whether the gentleman was a Xavier student, he responded: “I know that he wasn’t.”

Mr. Samuel also admitted that none of the vehicles that blocked his driveway were owned by Xavier. He further admitted that the people who parked in his driveway and freight zone did so illegally and he felt that they knew that they were doing so illegally. He admitted that his own customers sometimes blocked the street.

Mr. Samuel had no receipts to show what the detail officers were paid (he testified that they were all paid in cash) and the expense was not shown on his originally filed tax return. After this litigation arose, Mr. Samuel amended the company return to show the expense.

Lieutenant Timothy Morris of the New Orleans Police Department testified that he supervised the private detail for Mr. Samuel. He testified that the people parking in the freight zone were inhabitants of the Xavier dorm, so he assumed they were Xavier students. He supported Mr. Samuel’s testimony about paying the officers working the detail in cash. He received $1,300.00 per week from Mr. Samuel which he in turn distributed to the officers working the detail. As this ^testimony is uncontradicted, at this stage of the proceedings we will accept it at face value.

At the conclusion of Lieutenant Morris’ testimony, Xavier moved for a “directed verdict” (involuntary dismissal) on the grounds that: (1) Samuel could take steps to enjoin or restrain Xavier from utilizing the parking lot in a manner inconsistent with zoning requirements, although it appears that by the time of this litigation, the use of the parking lot for FEMA trailers had ceased; (2) Mr. Samuel testified that even before he hired the police detail, he was successful in calling the City and having vehicles towed. Xavier further noted that Lieutenant Morris called the City and had vehicles towed, the same procedure employed by Samuel prior to hiring the detail and Lieutenant Morris explained that the City was very responsive. Therefore, Xavier contends that there was no reason to hire the detail; and (3) lastly, the illegally parked cars were not owned or operated by Xavier and that while some of the illegally parked cars may have been owned by Xavier students, others clearly were not. Xavier contended that it could not be held liable for students who may have parked illegally — that the students who may have done so were responsible for their own acts in that regard.

Xavier also argued that there is no case in Louisiana that awards damages for a zoning violation for non-physical damages.

The plaintiff cites Varnado v. Southern University at New Orleans, 95-2619 (La.App. 4 Cir. 5/1/96), 673 So.2d 1289, in support of its argument that Xavier is liable for damages arising out of the use of its parking lot for FEMA trailers in violation of zoning requirements. In Vamado, this Court held Southern University of New Orleans (“SUNO”) liable for damages incurred when SUNO allowed students to use as a parking lot, property zoned residential, the only practical 16access to which was over the plaintiffs private drive. As a result students were using the plaintiffs private drive and causing damage to his property as they did so. Between 100 and 150 cars per day were using the plaintiffs private drive. SUNO’s operation of the illegal parking lot was the direct cause of damage to and interference with the enjoyment of the plaintiffs property.

The first important distinction to note between Vamado and the instant case is that in Vamado the plaintiffs property suffered economic damages, but in the instant case no physical damage is claimed by the plaintiff. Also, in Vamado the plaintiff sought and was granted injunctive relief in aid of her claim, but the plaintiff in the instant case has sought no such relief.

Xavier argues that there is no ease of association between the temporary use of the parking lot for FEMA trailers and the inconvenience caused by people parking illegally in proximity to the Samuel company. In PPG Industries, Inc. v. Bean Dredging, Inc., 447 So.2d 1058 (La.1984), the Louisiana Supreme Court stated that we should consider “the moral, social and economic values involved, ... with a view toward the ideal of justice.” In applying this standard, Xavier argues that this Court should take into account the unprecedented nature of the Katrina disaster in considering the temporary use of the parking lot for FEMA trailers. (It is undisputed that the lot is no longer used for FEMA trailers.) As we noted earlier in this opinion, when asked why he had never sought injunctive relief, Mr. Samuel explained that the disruptions caused by Katrina to the legal system, to his attorney and to his business made such efforts impracticable, thereby, in effect, admitting that Katrina devastation created extraordinary circumstances. Therefore, we find that under such extraordinary circumstances, the temporary use of the parking lot for FEMA trailers was reasonable. We might add, that based on Mr. Samuel’s own 17testimony, it would appear that because Samuel’s business dealt in materials that were employed in the Katrina recovery efforts, Samuel saw his business increase dramatically after Katrina and he has claimed no damages for loss of business.

In Varnado, SUNO effectively and actively encouraged and promoted trespass upon the plaintiffs property, implying that it was appropriate to do so. Nothing Xavier did in the instant case implied that it approved of its students parking illegally. There was also the matter of lack of “no parking” and “freight zone” signage, but that was the City’s responsibility, not Xavier’s. Finally, based on the testimony in the record, one can only conclude that a substantial number of those persons parking illegally were not Xavier students at all.

The plaintiff further complains that the trial court erred in granting Xavier’s motion for involuntary dismissal at the close of plaintiffs case, citing Anderson v. McCarty, 462 So.2d 630, 634-35 (La.1985) for the proposition that,- under 1672B, the trial court should have waited until the close of all the evidence before rendering a decision. Anderson is inapplicable. In Anderson the Louisiana Supreme Court reversed the granting by the trial court based on findings that the plaintiff had presented a prima facie case and, perhaps more importantly, that the dismissal was based on the erroneous exclusion of certain evidence. In the instant case the plaintiff does not base this appeal on allegations that any of its evidence was improperly excluded.

Generally, the standard for granting an involuntary dismissal in the defendant’s favor is much lower than the standard for granting a directed verdict. State in the Interest of Joseph, 97-0780, p. 6 (La.App. 4 Cir. 12/23/97), 705 So.2d 776, 782. The trial court is required to consider the evidence in the light most favorable to the plaintiff when deciding a motion for directed verdict, while it is required to evaluate the evidence without |sapplying any special inferences in favor of either party in a motion for involuntary dismissal.

Falgout v. Louis-Jeune, 00-2452, p. 9 (La.App. 4 Cir. 10/3/01), 799 So.2d 610, 616. See also Morgan v. City of New Orleans, 94-0847 (La.App. 4 Cir. 12/15/94), 647 So.2d 1308.

In determining whether involuntary dismissal should be granted, the appropriate standard is whether the plaintiff has presented sufficient evidence on his case-in-chief to establish his claim by a preponderance of the evidence.

Thornton ex rel. Laneco Const. Sys., Inc. v. Lanehart, 97-2871, p. 4 (La.App. 1 Cir. 12/28/98), 723 So.2d 1127, 1130.

Finally, the plaintiff states in its brief that the grant of an involuntary dismissal is subject to manifest error review, citing, Broussard v. Voorhies, 06-2306, p. 3 (La. App. 1 Cir. 9/19/07), 970 So.2d 1038, 1041.

Therefore, taking all of the testimony of the plaintiffs two witnesses at face value, we find that the trial court committed no error in granting the involuntary dismissal and that there was no manifest error in the trial court’s implicit finding that the plaintiff failed to establish its claim by a preponderance of the evidence.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Lieutenant Morris was the only witness other than Mr. Samuel to testify.


author: EZELL, Judge.

text:
    RICKO CONSTRUCTION, INC. v. Owen DUBOIS, et al.
    No. CA 10-1062.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 9, 2011.

      Norval J. Rhodes, Montgomery, LA, for Defendants/Appellees, Owen Dubois, L.V. Fredieu Bryant.
    Michael John O’Shee, Randall Lee Wil-more, Gold, Weems, Bruser, Sues & Randell, Alexandria, LA, for Plaintiff/Appellant, Ricko Construction, Inc.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

|, Ricko Construction, Inc. appeals a trial court judgment dismissing its claim to be recognized as owner of a disputed tract of property in Grant Parish along Sugar-house Bayou. Ricko filed suit for damages to its property, claiming ownership of the property by thirty-years acquisitive prescription.

FACTS

In 1972, L.V. and Earl Bryant purchased some property in Grant Parish located along Sugarhouse Bayou and Louisiana Highway 8. 'The Bryants lived in a house located on the property while they built a house on Patterson Road. In 1974, the Bryants sold 0.48 acres to Cassie and O.D. Slayton. This portion of the property contained the house. Mr. Bryant was Mr. Slayton’s uncle. The Bryants continued to own the property on the eastern boundary. In 1997, after her husband died, Mrs. Slay-ton moved out. At the time, their son Charles Slayton continued living in the home. During the years 2000-2002, the house was vacant. Within a year, the house was demolished.

In 2004, another son, Willie Slayton, bought the property from his mother. At that time he would bring a travel trailer to use on the property. In April 2007, Willie leased the property to Ricko and eventually sold the property to Ricko in November 2008.

In September 2007, Owen Dubois, who owned the property across the street and to the west of the disputed tract, erected a fence across the backside of the property owned by Ricko, cutting off access to Sug-arhouse Bayou. Mr. Dubois did this at Mrs. Bryant’s direction. In October 2008, Mrs. Bryant had Mr. Dubois remove a fence on the eastern boundary of the property and destroy some concrete steps that went down to the water that Willie had built on property.

12Ricko Construction and its president and owner, Roy Bennett, filed suit in December 2008 against Mrs. Bryant and Mr. Dubois seeking damages. A bench trial was held on January 27, 2010.

The trial court issued written reasons for judgment and found that Mr. Bennett had no right of action since Ricko, and not Mr. Bennett, is the owner of the property. The trial court found that the deed conveying the property to Ricko did not contain language transferring title to the land below the “high bank.” The court further found that Ricko had not established adverse possession to establish title by acquisitive prescription of thirty years.

Ricko filed the present appeal claiming that the trial court should have recognized Ricko as the owner of the disputed property by thirty-years acquisitive prescription. In the alternative, Ricko argues that the trial court erred in refusing to rule on the navigability of Sugarhouse Bayou so as to allow Ricko to use the bank as a public thing.

BURDEN OF PROOF

Ricko claims that the action became a petitory action when Mrs. Bryant answered the suit claiming she was owner of the disputed property. Ricko argues that the trial court erred in finding that Mrs. Bryant had established “title good against the world” citing La.Code Civ.P.art. 3657 and Duck v. Guillory, 98-1358 (La.App. 3 Cir. 3/3/99), 737 So.2d 91, writ denied, 99-913 (La.4/30/99), 743 So.2d 210.

Ricko filed an action in trespass. An action of trespass is neither a petitory, nor a possessory, nor a boundary action. Harvey v. Havard, 287 So.2d 780 (La.1973). Therefore, the action is not converted into a petitory action, and the issue becomes who has better title. Id.; Hayward v. Noel, 225 So.2d 638 (La.App. 1 Cir.1969), writ refused, 254 La. 857, 227 So.2d 595 (1969); Delacroix Corp. v. Dean, 04-899 (La.App. 4 Cir. 4/13/05), 901 So.2d 1188. “[T]itle to the land is a pivotal issue simply because it is the foundation for the action and the plaintiff in such action bears the burden of proving his ownership.” Brown v. Bedsole, 447 So.2d 1177, 1181 (La.App. 3 Cir.), writ denied, 450 So.2d 358 (La.1984).

Mrs. Bryant was not required to prove “title good against the world,” and therefore the issue we must address is whether Ricko had better title than Mrs. Bryant.

THIRTY-YEARS ACQUISITIVE PRESCRIPTION

There is no dispute in this case that Ricko and its ancestors in title did not have just title to the disputed property. However, Ricko argues that its ancestors in title exercised acts of adverse possession to the disputed area to establish ownership by prescription.

“Acquisitive prescription is a mode • of acquiring ownership or other real rights by possession for a period of time.” La. Giv.Code art. 3446. “Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.” La.Civ.Code art. 3486. “For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed.” La.Civ. Code art: 3487.

“To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing.” La.Civ.Code art. 3424. “Corporeal possession is the exercise of physical acts of'use, detention, or enjoyment over a thing.” La.Civ.Code art. 3425. “One is presumed to intend to possess as owner unless he began to possess in the name of and for another.” La.Civ.Code art. 3427. “In the absence of title, one has possession only of the area he actually possesses.” La.Civ.Code art. 3426.

|/‘When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles.” La.Civ.Code art. 794. “If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.” Id. Privity of contract or estate is an essential prerequisite to tacking on the possession of an ancestor in title for prescriptive possession purposes. Marks v. Zimmerman Farms, LLC, 44,279, 44,280 (La.App. 2 Cir. 5/20/09), 13 So.3d 768.

The party seeking to establish title to property through acquisitive prescription bears the burden of proof. Brooking v. Vegas, 03-1114 (La.App. 3 Cir. 2/4/04), 866 So.2d 370, writ denied, 04-577 (La.4/30/04), 872 So.2d 491.

The Slaytons bought the property in 1974; so if there were sufficient acts of possession over the disputed area for thirty years without interruption, then ownership of the property would have vested by virtue of acquisitive prescription in 2004.

What constitutes possession depends primarily on the nature of the property. “The quality of possession’required in a particular case depends not only on its classification as good or bad faith possession, but also on the type of land in dispute. Liner v. Louisiana Land & Exploration Co., supra [319 So.2d 766] at 772 [La.1975]. The acts of possession required in-the case of farm land must be of a greater quality than in the case of woodland; and, a greater quality of possession is required in the case of woodland than in the case of swamp or marsh land. Liner, supra at 772. Further, where an individual claims by corporeal possession alone and without title, he must show an adverse possession within enclosures. Norton v. Addie, supra [337 So.2d 432] at 436 [La.1976]. “ ‘Enclosed’ does not necessarily mean ‘fenced in.’ ” City of New Orleans v. New Orleans Canal, Inc., 412 So.2d 975, 981 (La.1982).
“What the court means by ‘enclosures’, as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with ^certainty the boundaries or limits thereof....” Hill v. Richey, 221 La. 402, 59 So.2d 434, 440 (La.1952).

Chevron U.S.A. Inc. v. Landry, 558 So.2d 242, 244 (La.1990).

There are clear enclosures in this case that were in existence when the Bryants bought the property. The eastern and western sides of the property were enclosed with fences, with a natural boundary, Sugarhouse Bayou, on the northern side. Highway 8 bounded the property on its southern side. These enclosures remained when the Bryants sold the property to the Slaytons.

Testimony on behalf of Ricko established that it was under the impression it bought the property all the way to the water. To establish corporeal possession, Ricko introduced the testimony of Willie Slayton, whose family acquired the home site in 1974 when he was twelve years old. He testified that the property was bounded on the east and west by barbed wire fences. The fences ran from a concrete marker on the property’s boundary with Louisiana Highway 8 to the water’s edge behind the house. Mr. Dubois owned the property on the west side of the fence, and the Bryants owned the property on the east side of the fence.

Willie testified that he mowed the bank with a push lawnmower many times as a young boy. His family barbequed in the disputed area, and they fished in the bayou from the bank. Willie testified that, at no time, did either of his parents acknowledge to him that someone had an ownership interest in the property. When he bought the property in 2004, he built some concrete steps on the bank which went close to the water’s edge. He also moved a travel trailer on the property since the original house had been demolished around 2002. Willie also testified that Mr. Bryant did not use the property to the rear of the house when his family bought it. Willie testified that he intended to sell to Ricko the property all the way to the water.

| fiWhen the Bryants bought the property in 1972, the fences were in existence. They bought several tracts of land at the same time with the boundaries extending to the center of Sugarhouse Bayou. At that time, the Bryants had Mr. Barrett Gremillion perform a survey which was completed on August 17, 1972. The survey marked the points of the high bank from Sugarhouse Bayou on all of the property. According to testimony, the sale to the Slaytons did not include the land from the high bank to the middle of bayou but only the 0.48 acres that included the house and down to the high bank. This is not disputed.

When the Bryants sold the property to the Slaytons, they did not take down the fences that enclosed that piece of property. Mrs. Bryant testified that her husband did not remove the fences because he had cattle on the rest of the property that was adjacent to the piece of land they sold to the Slaytons. According to Mrs. Bryant, she and her husband explained to Mr. Slayton that they were only selling the property down to the high bank. Mrs. Bryant stated that she would go on the property on occasion to visit the Slaytons.

Mr. Dubois testified that he had an oral agreement with Mrs. Bryant to lease the property in dispute after her husband died in 1991. He testified that he did not do much on the disputed property except to maybe walk on it on occasion. To access the property, he would climb over the fence adjacent to the property he owned.

There was never any testimony from Mrs. Bryant that she had leased the disputed property to . Mr. Dubois. Mrs. Bryant agreed that she did not maintain this property. It was not until 2007 that Mrs. Bryant directed Mr. Dubois to erect a fence across the back side of the property. In October 2008, Mrs. Bryant directed Mr. Dubois to cut the fence on the eastern side of the property, in addition to cutting the timber on that side. Mr. Dubois was also directed to destroy the concrete steps at that 17time.

Murrell Page testified that he was asked by Mrs. Bryant to help find the corners of her property after her husband died. Mr. Page had worked for a land surveyor. He went over to the property one afternoon, and Mr. O.D. Slayton came out of the house to ask him what he was doing. Mr. Slayton helped Mr. Page find the metal pipes establishing the boundaries, including the high water mark. Mr. Page testified that Mr. Slayton did not indicate that he owned the property all the way to the water’s edge. Mrs. Bryant confirmed that Mr. Slayton helped them find the metal pipes in the ground.

Earline Humphrey, the Bryants’ daughter, also testified at the trial. She was married at the time the Bryants originally bought the land. She testified that she always knew that her parents did not sell the section of the land from the high bank down to the water to the Slaytons.

The trial court found that Ricko had not established sufficient acts of adverse possession. Specifically, the trial court found that the Slaytons may have been possessing as adverse possessors on behalf of the Bryants. The trial court then further stated that all acts of possession at trial were not enough to start the running for thirty-year acquisitive prescription purposes until Willie built the concrete steps. ■ .

Based on the evidence presented at the trial, we cannot say that the trial court committed manifest error in 'finding that Ricko failed to establish title to the property by thirty-years acquisitive prescription. We agree with the trial court that there were not sufficient acts of possession over the disputed land to establish ownership. The testimony established that the Bryants indicated to the Slaytons that they were not selling the land past the high water mark. The Slaytons may have used the disputed land in conjunction with their own land but it appears from the evidence that they |swere possessing on behalf of the Bryants. Mr. Page, a disinterested witness, even acknowledged that Mr. Slay-ton did not indicate he owned the disputed land when he helped him locate the metal pipe markers.

NAVIGABILITY

In the alternative Ricko argues that the trial court should have addressed the issue of navigability. Ricko claims that it presented evidence that Sugarhouse Bayou was a navigable water body, entitling Ricko to use the bayou’s banks as a public object.

A judgment that is silent as to part of the relief requested is deemed to have denied the relief. Duhon v. Lafayette Consol. Gov’t, 05-657 (La.App. 3 Cir. 12/30/05), 918 So.2d 1114. The trial court did not address the issue of the navigability of Sugarhouse Bayou, so we deem it denied.

“Navigability is not presumed; the burden of proof rests with the party seeking to establish it.” State ex rel Guste, v. Two O’Clock Bayou Land Co., Inc., 365 So.2d 1174, 1177 (La.App. 3 Cir. 1978), writ denied, 367 So.2d 387 (La.1979).

A body of water is navigable in law when it is navigable in fact. The factual question turns on whether the evidence shows a body of water to be suitable by its depth, width and location for commerce. However, lack of commercial traffic does not preclude a finding of navigability.

Id. (citations omitted)

Ricko introduced the testimony of Larry Decker, a surveyor with the Office of State Lands in Baton Rouge. Mr. Decker explained that the Office of State Lands deals with issues of historical navigability, meaning what was navigable at the time of statehood for Louisiana in 1812. He testified that the issue of whether Sugarhouse Bayou was navigable required further study.

| ciBased on this evidence we find that the trial court was correct in denying Ricko’s request to have Sugarhouse Bayou declared navigable.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Ricko Construction, Inc.

AFFIRMED.


author: GREMILLION, Judge.

text:
    James D. MITCHAM, et al. v. Dr. Ernesto KUFOY.
    No. 10-1068.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 9, 2011.

      Richard B. Cappel, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Defendant/Appellee Dr. Ernesto Kufoy.
    David L. Wallace, Attorney at Law, DeRidder, LA, for Plaintiffs/Appellants James D. Mitcham Jennifer D. Andrews.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| iPlaintiff/appellants, James D. Mitcham and Jennifer D. Andrews, contend that the damage award of $1,500.00 on the survival action they initiated following the death of their father is abusively low. For the reasons that follow, we affirm.

FACTS

Thomas Mitcham, father of the plaintiffs/appellants, was a longtime patient of Dr. Ernesto Kufoy. Dr. Kufoy, a nuclear cardiologist, primarily treated Mitcham for chronic obstructive pulmonary disease (COPD). On March 2, 2006, Mitcham saw Kufoy complaining of severe shortness of breath. Kufoy ordered x-rays of Mitc-ham’s chest, which demonstrated a left-sided pleural effusion, an accumulation of fluid in the pleural space outside the lung. In order to confirm that the accumulation consisted of nothing but fluid, Kufoy recommended, and Mitcham consented to, a thoracentesis. In this procedure, a needle is introduced into the pleural space and fluid is drawn from the space by syringe. The fluid was sent to a laboratory for analysis.

The following day, Mitcham had difficulty breathing and his back was hurting. His friend, Ms. Christa Jane Fomby, offered to take him to Kufoy, but Mitcham indicated that he was fine and drove himself. A chest x-ray revealed that Mitc-ham’s had developed a right pneumotho-rax. A pneumothorax is a recognized complication of a thoracentesis procedure. Kufoy had Mitcham sent to Beauregard Memorial Hospital. A nurse’s note generated at Beauregard indicated that Mitc-ham had two puncture wounds on his right side. He was diagnosed with a partially collapsed left lung and a collapsed right lung. Kufoy ordered Mitcham transferred to Lake Charles Memorial Hospital. Dr. Ben Thompson, a pulmonologist, treated Mitcham at Lake Charles Memorial. Dr. Thompson’s records also reflect that Ku-foy apparently |2attempted a right-side thoracentesis.

At Lake Charles Memorial, it was learned that Mitcham was suffering from small cell carcinoma of the lung. He died on March 20, 2006.

Plaintiffs/appellants are the two major children of Mitcham. They initiated proceedings pursuant to the Medical Malpractice Act (MMA). They alleged that Kufoy breached the standard of care in failing to timely diagnose Mitcham’s cancer, and in performing a thoracentesis on the wrong side. Those proceedings produced a medical review panel opinion that found that the evidence did not support the conclusion that Kufoy breached the standard of care in failing to timely diagnose Mitcham’s cancer, but did support the conclusion that Kufoy breached the standard of care in performing a thoracentesis on the wrong side. Plaintiffs/appellants then filed suit.

The matter proceeded to a bench trial. Kufoy’s attorney moved for an involuntary dismissal on the allegations of failure to timely diagnose Mitcham’s cancer. The trial court granted that motion. The trial then proceeded solely on the issue of the liability and damages for the allegedly improper thoracentesis. At the close of evidence, the court took the matter under advisement and the parties submitted briefs. The court issued reasons for judgment shortly thereafter. In its written reasons, the trial court found that Kufoy more likely than not performed the thora-centesis on the right side, which caused the development of the right pneumotho-rax. However, while the pneumothorax caused Mitcham some pain and discomfort on the right side, the trial court found that the testimony and medical records indicated that his pain had vanished by the morning of March 3, 2006. Accordingly, the trial court awarded plaintiffs/appellants $1,500.00 for Mitcham’s | spain and suffering. Plaintiffs/appellants now appeal.

ASSIGNMENT OF ERROR

Plaintiffs/appellants assign as the sole error the award of $1,500.00 for Mitcham’s pain and suffering from the thoracentesis, which they contend is insufficient.

ANALYSIS

A court reviewing a general damage award does so under an abuse-of-discretion standard. Andrus v. State Farm Mut. Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206. This requires us to determine whether the award is below that which a reasonable trier of fact could award for the particular injury to the plaintiff under the particular circumstances of the case. Id. Plaintiffs/appellants cite cases that they contend demonstrate the abusively low nature of the trial court’s award. We are instructed, though, that it is only after we have determined that an award was abusively low that we can look to the jurisprudence for similar awards. In 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), the supreme court stated, “The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.” While making this initial inquiry, we are specifically prohibited from using “a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case.” Id.

At first blush, it may seem shocking that the trial court would have awarded L$1,500.00 for the survival action on Mite-ham’s behalf. However, there was no evidence that the error of Kufoy contributed to Mitcham’s' death or brought about any diminution of his chances of survival. Indeed, plaintiffs/appellants did not assign as error the dismissal of then- wrongful death claims. Further, the evidence also demonstrated that, while Mitcham complained of pain between the thoracentesis and the following day, March 3, at which time the Beauregard Memorial records indicate his pain level was 0/10. Those records also indicate that Mitcham’s primary complaint was shortness of breath, the same complaint that had prompted .the thoracentes-is.

Ms. Fomby was the only witness to testify about Mitcham’s pain. She related that on the morning of March 3, she offered to drive Mitcham to Kufoy’s office, but that Mitcham refused because he indicated that he was fine.

The evidence demonstrates that the elements for which general damages are awarded, intensity and duration of pain, are both of a minimal nature. Mitcham was not in intense pain, and his pain lasted but a few hours. Accordingly, we affirm the trial court’s judgment.

CONCLUSION

The only issue before the court is whether, in awarding plaintiffs/appellants a total of $1,500.00 for the injury resulting from a thoracentesis on the wrong side, the trial court abused its discretion. We are unable to conclude that the trial court’s award is abusively low. The judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiffs/appellants, James D. Mitcham and Jennifer D. Andrews.

AFFIRMED.


text:
    SUCCESSION OF Julius ARABIE.
    No. CA 10-1074.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 9, 2011.

      Phillip Michael Maneille, Lake Charles, LA, for Appellee Mark Stephen Arabie.
    Cecil R. Sanner, Cameron, LA, for Appellant Doris Marie Arabie.
    Richard Dale Moreno, Robinson & Moreno, Lake Charles, LA, for Other Richard D. Moreno.
    Christopher Cameron, McCall Baggett, McCall & Burgess, Charles, LA, for Appellant Doris Marie Arabie.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

11 Doris Arabie appeals the decision of the trial court ruling that benefits from an AFLAC cancer policy held by her late husband, Julius Arabie, were his separate property. For the following reasons, we affirm the decision of the trial court.

On March 1, 1986, during his first marriage, Mr. Arabie purchased an AFLAC cancer indemnity policy. After becoming a widower in 1995, Mr. Arabie was diagnosed with prostate cancer in 1996 and collected benefits under the policy. Mr. Arabie married Doris in 1999. At the time he married Doris, Mr. Arabie’s cancer was in remission.

In September 2008, Mr. Arabie was again diagnosed with cancer. He again received benefits from the AFLAC policy totaling roughly $40,000.00, which were deposited into a joint checking account owned by Mr. and Mrs. Arabie. On May 12, 2009, Mr. Arabie died from the disease. Mr. Arabie died testate, and in accordance with his will, his son, Mark, was appointed executor of his succession. Also according to his will, any money in the joint account was to remain the property of Mrs. Arabie. At the time of his death, $65,776.81 was owed Mr. Arabie under the policy. In accordance with policy language, proceeds were paid to his estate in that amount. Mark Arabie filed a petition for declaratory judgment, seeking to establish that the 1986 AFLAC cancer policy and the $65,776.81 in benefits paid to his father’s estate were his father’s separate property. Mrs. Arabie reconvened, seeking to recover what she claimed was her half of the remaining benefits arising from the AF-LAC policy, which she claimed was a community asset.

The trial court ruled that the policy and remaining benefits were Mr. Arabie’s separate property, but that Mrs. Arabie was entitled to recover $1,480.00 from the estate, equal to one half of community proceeds used to pay the premiums for the | gpolicy. From that decision, Mrs. Arabie appeals.

On appeal, Mrs. Arabie asserts as her sole assignment of error that the trial court erred in failing to designate all the AFLAC cancer policy benefits as community property of the spouses.

It is well-settled that “a trial court’s findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review.” Ross v. Ross, 02-2984, p. 18 (La.10/21/03), 857 So.2d 384, 395. “All things, corporeal or incorporeal, that the law does not consider as immovables, are movables.” La.Civ.Code art. 475. “Rights, obligations, and actions that apply to a movable thing are incorporeal movables.” La.Civ.Code art. 473. The AFLAC cancer policy was thus incorporeal movable property belonging to Mr. Arabie. See Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956).

Louisiana Civil Code Article 2338 (emphasis ours) states: “[t]he community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse.... ” “Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.” La.Civ.Code art. 2340. A spouse may rebut the presumption of community by showing he acquired the property “with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used-” La. Civ.Code art. 2341. More succinctly, the classification of property as separate or community is fixed at the time of its acquisition. Robinson v. Robinson, 99-3097 (La.1/17/01), 778 So.2d 1105.

|sThe policy in question was purchased in March 1986, some thirteen years before Mr. Arabie married Doris. The policy named Mr. Arabie as its sole owner and insured. Benefits of the policy were payable to Mr. Arabie alone. The final, disputed payment was paid to Mr. Arabie’s estate, as the policy provided. While community funds were used to pay some of the premiums, the amount paid by the community was far less than the amount paid by Mr. Arabie separately, and Mrs. Arabie was compensated by the trial court for the amount paid by the community. Because the policy was acquired long before the existence of community regime, it is obvious that the policy itself was the separate property of Mr. Arabie.

However, because the cancer that was the condition triggering AFLAC’s obligations under the policy occurred during the marriage, Mrs. Arabie claims that the benefits arising from the policy themselves are community property. We disagree. Although the condition giving rise to the currently disputed benefits arose during the community, the right to recover those benefits arose from the insurance contract which was clearly the separate property qf Mr. Arabie. Simply put, Mr. Arabie acquired his right to recover under that policy in 1986. Likewise, AFLAC’s obligation to pay him in the event he developed cancer also arose in 1986, regardless of when the triggering event occurred. Because the benefits stem solely from his separate property, they also remain the separate property of Mr. Arabie, regardless of when the events triggering the benefits occurred.

Finally, Mrs. Arabie seeks to compare the benefits payable under the policy to those of a disability insurance policy. However, we agree with the trial court that the policy was not written nor intended to replace wages that would have been community property. The benefits of the policy were to compensate Mr. Arabie, and him alone, for damages arising from a specific disease causing injury to his body. |4Nowhere in the listed policy benefits is there any indication that lost wages were recoverable under the policy. Further, Mr. Arabie’s ability to work had no bearing whatsoever on his ability to recover benefits under the policy, as benefits hinged on a cancer diagnosis alone. We do not find the comparison to disability insurance compelling; thus, any jurisprudence on disability policies is distinguishable from and irrelevant to the case at hand.

Based on the record before this court, we can find no manifest error in the decision of the trial court that an insurance policy purchased thirteen years before the commencement of a community regime, and the benefits arising therefrom, were the separate property of its owner. Accordingly, we must affirm the decision of the trial court.

The decision of the trial court is hereby affirmed. Costs of this appeal are assessed against Doris Arabie.

AFFIRMED.