text:
    Bryan McCARTHY and Brandee McCarthy, Plaintiffs-Appellees v. E & L DEVELOPMENT, INC., Defendant-Appellant.
    No. 45,683-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 10, 2010.

      Sentell Law Firm by: C. Sherburne Sentell, III, for Appellant.
    Ayres, Warren, Shelton & Williams by: J. Todd Benson, for Appellees.
    Before BROWN, STEWART and LOLLEY, JJ. STEWART, J.
   STEWART, J.

| ,The defendant, E & L Development, Inc., appeals a judgment ordering it to pay the plaintiffs, Bryan and Brandee McCarthy (the “McCarthys”), $25,000 in damages and $15,762.82 in attorney fees and other costs for a redhibitory defect, namely, a natural drain that runs through their backyard and makes the part of the backyard affected by the natural drain unusable for its intended purpose when it rains. Because the McCarthys did not meet the burden of proving a redhibitory defect, we reverse the trial court’s judgment and render judgment in favor of E & L Development by dismissing the McCarthys’ claims against it.

FACTS

The McCarthys purchased Lot 9 of the Northwood Trace Subdivision Unit 3 from E & L Development on October 4, 2006, for $170,500. Prior to closing the sale, the McCarthys got a copy of the subdivision plat which showed that a natural drain runs through the backyard of Lot 9. The McCarthys made no inquiries about the natural drain. Soon after the sale closing, the McCarthys fenced their backyard. They used wood fencing along the sides and chainlink for the rear. The wood privacy fence along the right side of their property cuts through the natural drain.

The McCarthys did not see the natural drain during a rainfall until after moving into their new home. When it rains, the natural drain becomes a creek through which water flows across the upper right part of the McCarthys’ backyard from the neighboring lots on the right. The water flow damaged the McCarthys’ new wood fence, causing it to lean. The McCarthys called E & L Development to do something to abate the flow of 12water across their backyard. When E & L Development failed to satisfy the McCarthys’ request, the McCarthys filed a redhibition suit on October 8, 2007, seeking to rescind the sale. They alleged that water flows like a river across their backyard every time it rains, making the property useless.

A bench trial was held on October 28, 2009. Brandee McCarthy testified that prior to the sale, she and her husband walked through the home with Jake Lawler, part owner of E & L Development, to create a punch list of items to be addressed before they moved to their new home. The only punch list items concerning the backyard were removing a tree near the house and adding dirt to level a slope off the back porch. Brandee testified that their real estate agent, Kim La-Count, asked them to ask about a low area in the back right corner of the lot that might collect standing water. According to Brandee, Jake’s response was that nothing needed to be done to level that area.

Because the McCarthys wanted to have a backyard fence erected as soon as they moved to their new home, they got a copy of the subdivision plat sometime prior to closing on the sale to use to obtain estimates for the fence. Brandee testified that she told Jake that they wanted to put up a privacy fence. When asked about Jake’s response to being told that they intended to put a fence on their property line, Brandee stated, “he didn’t have — I mean, he seemed fine with it and provided the plat that we asked for.”

Brandee admitted that the plat showed a natural drain flowing through their property and that it did not cause her or Bryan concern. They | ^assumed the natural drain could be landscaped around. They had no problem with some water flowing through their backyard but did not have any idea that it would be a “substantial amount.” Brandee testified that no one, including their real estate agent or fence contractor, expressed concern about the natural drain. After moving in October, they realized that the backyard in the area of the natural drain floods even during a moderate rainfall. Around January 2007, they called Jake because their new fence was falling over due to the water flow. Brandee explained that once the rain stops, there is still a “pretty heavy flow” through their backyard for one to two hours and that the water eroded an area under part of the fence where standing water remains for up to a week in a hole that is about three feet deep and four to five feet wide. Brandee testified that because of the hole, they are afraid to let their child, who was just over a year old, play in the backyard for fear that he will drown and that they are also concerned about the danger that the water poses to their dogs. She stated that they would not have purchased the lot if they had known about the amount of water that flows through the natural drain.

On cross-examination, Brandee admitted that although they saw the natural drain line on the plat and the potentially low lying area in the backyard, they did nothing to learn more about the natural drain or find out how much water might drain through their backyard. She also admitted that their fence crosses the natural drain. She agreed that the fence acts like a dam by slowing the water approaching the fence and causing the water to flow under and around the fence.

|4Photographs introduced into evidence show the water flowing through the neighboring lot, Lot 10, in a channel or creek until it nears the McCarthys’ wood privacy fence where the water begins spreading out of the channel and flooding the area along the fence and part of the McCarthys’ backyard. Photographs also show a visible slope downward in the backyard to the rear of the lot.

Bryan McCarthy, whose testimony was similar to Brandee’s, stated that no one told them they could not build a fence on their property line. Though they assumed there would be “a little water” due to the natural drain, they did not expect there would be “such a mad rush of water.” However, he admitted that they made no inquires about the natural drain.

Jake Lawler, the 49 percent owner of E & L Development, admitted that he did not discuss the natural drain that runs through Lot 9 with the McCarthys. Jake’s testimony indicated that he was familiar with the flow of the natural drain, which he described as “water running downhill.” He testified that the drainage on Lot 9 was the same before and after construction of the house and that he had not seen large pools of standing water before the McCarthys erected the wood privacy fence across the natural drain. According to Jake, the wood privacy fence blocks the natural drain and causes the holes of standing water complained of by the McCarthys. He explained that without the wood privacy fence, the natural drainage creek is more narrow and the water flow is faster.

Jake testified that though he knew the McCarthys were planning to build a fence when he gave the plat to their real estate agent, he did not ask |5about the type of fence or advise them on where to build the fence. He testified that he has never had to tell a homeowner that a solid wood fence should not be placed across a natural drain. He indicated that some homeowners use chainlink fencing instead. He also testified that natural drains are present on other lots in the subdivision, including Lot 10, which is almost cut in half by the same natural drain that traverses the McCarthys’ lot.

Kenneth G. Lawler, president and 51 percent owner of E & L Development and Jake’s father, testified that the subdivision was developed by Kenneth J. Lawler Builder, Inc., and then sold to E & L Development, which built and sold the houses. He knew water traversed Lot 9 as well as Lots 10 and 11. He explained that the natural drain line on the plat was there to indicate the flow of a significant amount of water, which he likened to a stream. He also stated that the flow was the same before and after construction of the home on the lot and that the natural drain and the sloping of the property were both visible. Kenneth testified that he had no contact with the McCarthys until they complained about the flow of water in their backyard and wanted him to do something about it.

Three experts testified. The first was Don A. Durr, a civil engineer, on behalf of the McCarthys. Durr visited the property on July 10, 2007, and observed evidence of erosion along the bottom of the fence and some standing water in holes around the fence. He recalled that there had been a heavy rainfall around July 5 and 6, 2007. He estimated that 49 acres drain across Lot 9 and that it is unusual to have that much acreage drain across |fione lot. However, he admitted on cross that the natural drain traverses three lots, not just Lot 9. Although he did not measure the McCar-thys’ lot, Durr estimated that 30 percent of the lot would be unusable during rainfall events. However, he stated on cross that during a 10-year rain event, water would traverse the lot from a matter of minutes to less than an hour. Durr testified that the natural drain on the lot is not apparent and that nothing on a dry day would indicate that the lot is susceptible to flooding. He did admit on cross that the slope to the rear of the property is visible to the naked eye. Durr also testified that the McCar-thys’ fence decreases the water flow on their lot by directing the flow to the back of the property. He explained that the fence dams the natural drain flowing from Lot 10. Though his proposal for abating the flow in the McCarthys’ backyard totaled $60,250, he agreed that this would be costly for a subdivision developer to implement and that the McCarthys could just move their fence out of the natural drain or install a different type of fence that would not block the flow. He testified that without the wood fence, the water would flow faster through the property but there would still be standing water in the creek bed “until it flows on out.”

Brad Graff testified on behalf of E & L Development as an expert in civil engineering with a subspecialty in drainage. He testified that Caddo Parish has a natural drain policy to reduce maintenance costs and that the subdivision’s drainage plan had been approved by parish engineers. He explained that Lot 9 is not in a flood zone and does not experience flooding. It simply has a natural drain through which water flows when it rains. He | ./testified that the wood fence impedes the flow of the natural drain, which would be more narrow and flow faster without the fence. Also, he testified that most of the holes he saw were due to “erosion from the increase of velocities caused by the fence.” He believed that moving the fence parallel to the natural drain would take care of the McCarthys’ problem. He agreed that the natural drain was open and obvious and he explained that the natural drain line on the plat is to provide notice to the public of a significant flow of water that cannot be impeded to the detriment of neighboring property.

Finally, Opha Philips, E & L’s listing agent at the time of the sale, testified as an expert in buying and selling residential and commercial properties. She showed the lot 10 to 12 times and did not recall observing any drainage issues. She described Lot 9 as having “a natural slope drainage” like all the properties in that subdivision and testified that a natural drain would not decrease the value of a home unless there was land erosion around the natural drain. Philips did not know how many acres drained through the lot, but agreed with the McCarthys’ counsel that it was not common for one lot to drain 49 acres. When shown photographs of the natural drainage area around the fence at the time of a rainfall, Philips observed that the amount of water did not appear to be typical of what would flow across a subdivision lot after a normal rainstorm. However, she also pointed out that the fence seemed to be holding the water flow. When asked if she would recommend that a buyer purchase Lot 9, she replied that she would recommend buying the property if the wood fence was removed.

IsOn November 4, 2009, the trial court made its ruling in open court. The trial court found that the McCarthys were aware of the natural drain, inquired about it, and were told that it was not a problem. The trial court further found that they told E & L Development about their plans to build a fence and were told that it would not be a problem. The trial court’s main concern was the standing water on the property for up to a week that prevented the McCarthys from using that part of their property for fear of harm to their dogs and child. The trial court said there was no indication that removal of the fence would resolve the standing water issue. Concluding that part of the property was not useable for its intended purpose, the trial court awarded the McCarthys a $25,000 reduction in the purchase price plus attorney fees and costs. Judgment in accordance with the trial court’s ruling was rendered January 19, 2010.

E & L Development now appeals. The McCarthys have answered the appeal to seek an increase in attorney fees.

DISCUSSION

Among its eight assignments of error, E & L Development asserts that the trial court erred in finding a redhibitory defect in connection with the natural drain, or intermittent creek, that flows in the McCarthys’ backyard. E & L Development argues that the natural drain was open and obvious and known to the McCarthys at the time of the sale. The McCarthys counter that the fact that their property flooded after even a moderate rainfall was not open or obvious to them.

|!}An appellate court may not set aside the trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. S.J. v. Lafayette Parish School Board, 2009-2195 (La.7/6/10), 41 So.3d 1119. To reverse the trial court’s factual determination, the appellate court must find from the record that no reasonable factual basis exists for the finding of the trial court and that the record establishes that the factual finding is clearly wrong. Id.; Stobart v. State, Through Dept. of Transportation and Development, 617 So.2d 880 (La.1993).

A seller warrants the buyer against re-hibitory defects in the thing sold. La. C.C. art. 2520. A redhibitory defect gives the buyer the right to rescind the sale when it renders the thing useless, or its use so inconvenient that it must be presumed that the buyer would not have bought it if he had known of the defect. Id. If the redhibitory defect is not one that renders the thing totally useless, but rather diminishes is usefulness or value so that it must be presumed the buyer would have still bought it but for a lesser price, the buyer has the right to a reduction of the price. Id.

Susceptibility to flooding can be a redhibitory defect. Kemper v. Don Coleman, Jr., Builder, Inc., 31,576 (La.App.2d Cir.7/29/99), 746 So.2d 11, writs denied, 1999-2954, 1999-2955 (La.1/7/00), 752 So.2d 861; Smith v. Kennedy, 392 So.2d 177 (La.App. 2d Cir.1980); Cox v. Moore, 367 So.2d 424 (La.App. 2d Cir.1979), writ denied, 369 So.2d 1364 (La.1979). Susceptibility to flooding is determined by the particular circumstances of each case and not solely by the fact of flooding. Smith, supra.

|inA seller owes no warranty for defects that were known to the buyer at the time of the sale or should have been discovered by a reasonably prudent buyer. La. C.C. art. 2521. Apparent defects that could have been discovered by simple inspection are not redhibitory. Nicholson v. Ellerbe, 434 So.2d 1146 (LaApp. 1st Cir.1983).

The record shows that the McCarthys had notice of the natural drain on Lot 9 at the time of the sale. They saw the natural drain marked on the subdivision plat that they obtained prior to closing. Also, their realtor had brought to their attention the low lying area in the right corner of the lot, which is the area traversed by the natural drain. Photographs introduced into evidence show that Lot 9 slopes downward toward the area of the natural drain. The slope is open and obvious. Clearly, the existence of the natural drain and low lying area in its vicinity of the yard were known to the McCarthys at the time of the sale.

The record does not support the trial court’s finding that the McCarthys inquired about the natural drain and were told that it was not a problem. This finding appears to have been based on Bran-dee’s testimony when asked if she had concerns about standing water prior to the sale. Brandee testified that their realtor asked them to ask about the back right corner of the lot and that Jake told them there was no concern and no leveling needed. Brandee’s concern was about the possibility of standing water and not the flow of water through the natural drain. The record does not show that Lot 9 had holes of standing water prior to the sale.

|iiRather, the record shows that the holes of standing water complained of by the McCarthys formed in the vicinity of the wood privacy fence which they had erected after the sale. The fence passes through the natural drain. When asked whether water remains in the yard after the natural drain ceases to flow, Brandee testified:

Yes. There’s — we’ve got a puddle — it’s eroded away completely under a portion of our fence and we’ve got a hole that’s about 3 feet deep and about 4 or 5 feet wide that continues to hold standing water for up to a week, at least.

The McCarthys’ expert witness, Don Durr, observed standing water in holes around the fence. He testified that the holes were made by erosion under and around the fence and, most importantly, he testified that “if the fence wasn’t there then the holes wouldn’t be there.” Durr, Graff, and Philips all testified that they would not recommend a solid wood fence across a natural drain. The record, including the photographs in evidence, shows that the fence acts as a dam by impeding the flow of water through the natural drain. Replacing the wood fence with a material like chainlink would allow the water to flow unimpeded through the natural drain.

Though the trial court found that the McCarthys told E & L Development about their plans to build a fence and were told that it would not be a problem, this finding is not supported by the record. Brandee testified that she told Jake that they planned to erect a privacy fence and needed the plat for estimates, but she did not testify that she sought his advice about the fence. Her testimony that Jake “seemed fine with it” does not establish that E & L Development approved or was responsible for the | 12McCarthys erecting a wood privacy fence through the natural drain after they purchased the property.

Contrary to the trial court’s finding that the McCarthys inquired about the natural drain, both Bryan and Brandee testified that they did not ask anyone about the natural drain or about how much water might flow through the lot. Rather, they assumed that some water would flow through the natural drain area but that it would not be a substantial amount and that they could simply landscape around the natural drain area. While it is true that the plat does not indicate how much water flows through the natural drain, the testimony of Kenneth Lawler and Brad Graff established that the natural drain line is marked on the plat to indicate a significant flow of water that cannot be impeded to the detriment of neighboring landowners. This testimony by Kenneth and Graff is supported by law. Natural drainage is a predial servitude. The McCarthys purchased Lot 9 subject to the servitude of natural drainage, which is addressed in La. C.C. arts. 655, et seq. As stated in La. C.C. art. 656, the owner of the servient estate may not do anything to prevent the flow of water. The owner of an estate through which water runs cannot stop it or give it another direction and is bound to return it to its ordinary channel where it leaves his estate. La. C.C. art. 658. Additionally, La. R.S. 38:218 prohibits one from impeding the course of water from a natural drain without returning the water to its natural course before it leaves his estate.

The record shows both that the McCar-thys knew about the natural drain prior to the sale and that they did not take any steps to discover how | isthe natural drain might impact their lot. Instead, they erected a fence through the natural drain thereby impeding the flow of water and apparently worsening the effect of the drainage through their lot. Under these facts, the law of redhibition does not entitle the McCarthys to a reduction in the purchase price as awarded by the trial court.

Cases in which susceptibility to flooding was found to be a redhibitory defect entitling the plaintiff to recovery of either the purchase price or a diminution in the purchase price are distinguishable. In Cox, supra, a newly constructed residence flooded multiple times. The residence was located in a low area of the subdivision and in a natural drain. A culvert through which the lot drained was too small. The McCarthys’ house has never flooded, and the natural drain is located on the rear of their lot away from the house.

In Amin v. Head, 419 So.2d 529 (La.App. 2d Cir.1982), writ denied, 423 So.2d 1151 (La.1982), the seller knew there were drainage and flooding problems when he sold the house to the plaintiffs. Water had previously entered the home when it rained and the seller had taken steps to remedy the drainage situation and believed it had been cured. Here, there was no showing that E & L Development knew of drainage or flooding problems prior to the sale or that such problems existed. The fact that rainwater flows through a natural drain, which traverses Lot 9 along with two other lots in the subdivision, creating a temporary or intermittent creek in the rear part of the McCarthys’ backyard does not mean that the lot has flooding or drainage problems.

|14In Millspaw v. Knight, 430 So.2d 1207 (La.App. 1st Cir.1983), the plaintiffs were awarded a reduction in the purchase price due to flooding and standing water in their backyard that rendered it unusable for significant periods. Prior to purchasing the property, the plaintiff had specified that he wanted a house that was not in a flood plain and did not have drainage problems. The McCarthys knew from the subdivision plat that a natural drain ran through the back of Lot 9, and they did nothing to find out about the water flow through the natural drain. Moreover, the record shows that the flow of water through their backyard renders the affected area unusable for only short periods during and immediately following rain.

In Rabai v. First Nat. Bank of Gonzales, 492 So.2d 90 (La.App. 1st Cir.1986), writ denied, 496 So.2d 354 (La.1986), the house and lot were advertised as “high and dry” when the lot was the lowest in the subdivision, was a natural drain for the other lots, and was located one lot away from a drainage canal that drained the entire subdivision and frequently flooded. The house had to be sandbagged twice to keep water out. Here, E & L Development did not advertise Lot 9 as being “high and dry.” The slope of the lot was visible, and the McCarthys had notice of the natural drain from the plat.

Under the particular facts of this case, we must conclude that no reasonable factual basis exists for the trial court’s finding of a redhibitory defect. The McCarthys knew about the natural drain from the subdivision plat and had notice of the slope to the rear of the lot where the natural drain is located. They made no inquiries about the natural drain. Though the 1^record establishes that the natural drain services about 49 lots, the plat shows that the drain traverses three lots and extends beyond the developed areas. When it rains, the natural drain becomes an “intermittent creek” through which water flows. By erecting a wood fence across the natural drain, the McCarthys impeded the natural flow, causing the water to back up in the area of the fence. This caused holes to develop along the fence where standing water remains after the flow stops. Under these facts, the finding of a redhibitory defect is clearly wrong and reversal is warranted. Our decision to reverse the trial court’s judgment renders moot the McCarthys’ request for additional attorney fees in this matter.

CONCLUSION

For the reasons stated, the judgment of the trial court is reversed. Judgment is rendered in favor of E & L Development dismissing the McCarthy's’ claims against it. Costs of appeal are assessed against the McCarthys.

REVERSED and RENDERED.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Leah ROBEIN v. Scotty ASSADEDO, MCC Electric and The Gray Insurance Company. State Farm Fire and Casualty Company v. Scotty Assadedo, MCC Electric, LLC and Gray Insurance.
    Nos. 10-CA-538, 10-CA-539.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 3, 2010.

      Alonzo T. Stanga, III, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    Jacqueline G. Griffith, Carl L. Aspelund, Attorneys at Law, Metairie, LA, for Defendants/Appellants.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2The matter before us is a partial summary judgment, which the trial judge designated as a final, appealable judgment under La.C.C.P. art. 1915(B). After the record was lodged in our Court, plaintifiyappellee, Leah, Robein, filed a pleading entitled “Answer.” Irrespective of the title, the pleading clearly seeks the dismissal of the devolutive appeal filed by defendants/appellants, Scotty Assavedo, Mechanical Construction Company, LLC, and Gray Insurance Company. Ms. Ro-bein seeks to dismiss the appeal on the basis that the judgment appealed was not properly certified as a final judgment under the provisions of La.C.C.P. art. 1915(B). We treat this pleading as a motion to dismiss the appeal. Based on our |sde novo review of the trial court’s designation of the judgment as final for purposes of appeal, we conclude that the trial court’s certification of the judgment was improper. Accordingly, we grant the motion to dismiss the appeal and dismiss the appeal without prejudice. We vacate the certification order of appealability and remand for further proceedings.

Facts and Procedural History

These consolidated cases arise from a motor vehicle accident, which occurred on August 5, 200B. In one case, Ms. Robein seeks damages from the defendants/appellants for alleged injuries resulting from the accident. She alleged that the accident occurred while she was operating her vehicle on North Causeway Boulevard in the U-turn lane just south of the intersection of Causeway Boulevard and Veterans Boulevard in Metairie, Louisiana. She asserted that while she was stopped for traffic, the defendant, Mr. Assavedo, operating a vehicle owned by his employer, Mechanical Electric, LLC, and while acting in the course and scope of his employment, negligently collided with the rear of her vehicle causing her to sustain serious and disabling injuries. In the other case, State Farm Fire and Casualty Company seeks to recover past and future workers’ compensation benefits it allegedly paid or will pay on behalf of Ms. Robein as a result of the accident.

In answer to Ms. Robein’s and State Farm’s petitions, the defendants/appellants raised the defenses of comparative negligence and assumption of the risk. After Ms. Robein filed the motion for partial summary judgment at issue here, the defendants/appellants amended their answer to add as an alternative defense the fault of a third party. They alleged that the third party |4drove a lead vehicle and negligently stopped suddenly and without warning in front of Ms. Robein. In the event any judgment was rendered in favor of the plaintiff, they asked that the judgment against them be reduced by the negligence of Ms. Robein or any other drivers who contributed to the accident.

Ms. Robein filed a motion for partial summary judgment in which she asked the court to find employer vicarious liability, insurance coverage, and causation.

The defendants/appellants stipulated to Mr. Assavedo’s employment with Mechanical Electric, LLC as well as to the fact that the Gray Insurance Company Policy attached to the plaintiffs motion for summary judgment was in full force and effect at the time of the accident. However, the defendants/appellants objected to its introduction at the jury trial. They also objected to the causation portion of the motion being granted. In that regard, they argued Ms. Robein’s comparative negligence and the fault of the phantom lead vehicle. Thus, they asserted that Mr. Assavedo was not 100% liable for the collision.

At the motion hearing, Ms. Robein’s counsel informed the court that in light of the stipulations, there was only one issue for the court to address: whether the defendants/appellants rebutted the presumption of negligence of Mr. Assavedo, the rear-ending motorist. In support of the motion, counsel introduced into evidence, without objection, portions of Mr. Assave-do’s deposition. However, the defendants’ counsel objected to a line of questioning eliciting an alleged expert opinion from Mr. Assavedo.

On January 14, 2010, the trial judge granted the partial summary judgment and made the following pertinent finding on causation:

That the defendants, Scotty Assavedo and Mechanical Construction Company, LLC, are liable for the negligence of Scotty Assavedo in |ficausing the Dodge Ram truck that he was operating to collide with the rear of the Robein vehicle.

The defendants/appellants filed their first motion for devolutive appeal on March 16, 2010. However, a few days later on March 22, 2010, they filed a motion to dismiss the appeal without prejudice, which this Court granted on March 23, 2010. Then, on the same date, the defendants/appellants filed an ex parte motion to designate the judgment as final. The trial judge granted the motion. The judgment was certified in an ex parte ruling as final after an express finding that there was no just reason for delay. Again, on the same date, the defendants/appellants filed a second motion for devolutive appeal, which was granted.

Analysis

In addition to arguing that the appeal should be dismissed as improperly certified under La.C.C.P. art. 1915(B), Ms. Robein argues the following grounds for dismissal: (1) the certification was improperly made without a contradictory hearing, and (2) the proposed certification order was not circulated to opposing counsel for review as to form as required by Rule 9.5 of the Louisiana District Court Rules. However, under Messinger, Inc. v. Rosenblum, 04-1664, p. 1-2 (La.3/2/05), 894 So.2d 1113, 1114-15, we must conduct a de novo review, and if upon de novo review find that the judgment was improperly certified, we must dismiss the appeal. Thus, since we find the judgment was improperly certified, the issues |,¡regarding the failure to conduct a contradictory hearing and failure to comply with Rule 9.5 are rendered moot. We do not, however, condone the practice of seeking an ex parte certification order in non-compliance with Rule 9.5. In this case, appellants’ counsel advised the trial court that “[tjhis is an ex parte motion and consent of opposing counsel has not been obtained.” In its response here to the appellee’s arguments, the appellants do not dispute or even address the fact that Ms. Robein was not given an opportunity to comment on the proposed order before it was presented to the trial court for signature. Since opposing counsel may object to the designation of appealability, as in this case, the better practice would be to allow opposing counsel the opportunity to respond with countervailing arguments.

The plaintiff argued in the body of her memorandum in support of the motion for summary judgment that Mr. Assavedo was 100% at fault, but in conclusion she only asked that the trial judge find that the defendants, Mr. Assavedo and his employer Mechanical Electric, LLC were liable for Mr. Assavedo’s actions and omissions in causing Mechanical Electric, LLC’s truck to collide with the rear of the plaintiffs vehicle. Therefore, in conclusion, she was only asking for a finding on causation. The trial judge made that finding but the finding does not establish 100% liability. The trial court’s judgment did not address the alleged comparative negligence of either Ms. Robein or the phantom vehicle or the sudden emergency defense.

The trial judge rendered a partial summary judgment as to one or more but less than all of the claims, demands, issues, or theories, in the original demand. Such a judgment “shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” La.C.C.P. art. 1915(B)(1).

17Although the trial judge designated the interlocutory judgment as final, he did not give explicit reasons for finding that there was no just reason for delay. When the trial court fails to give explicit reasons on the record for its determination, appellate courts should review de novo certified judgments. R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 1-2 (La.3/2/05), 894 So.2d 1113, 1114-15.

In support of their motion for certification, the defendants/appellants asserted that certification would result in a final disposition of liability. Thus, the trial judge evidently considered their argument. At the motion hearing, plaintiffs counsel argued that the granting of the motion would eliminate the need to instruct the jury on liability and comparative fault. In her brief before this Court, Ms. Robein likewise characterizes the judgment as a judgment on liability. On the other hand, the appellants express uncertainty before this Court as to whether the judgment disposed of their comparative negligence claim. They argue that, in the event we do not dismiss the appeal, we clarify the ambiguous judgment.

Here, the trial judge rendered a partial summary judgment on only one aspect of liability raised in this litigation— causation. However, there are outstanding liability issues that must be adjudicated by the jury before liability can be determined. These issues include the merits of the defendants’ defenses of comparative and third party negligence. In short, the merits of these liability issues, which necessarily involve the introduction of evidence on these defenses, must be resolved before the jury can proceed to decide the damage issue. Thus, contrary to Ms. Ro-bein’s characterization of the judgment as one disposing of all liability issues, liability issues remain to be decided.

The First Circuit has routinely held that “[wjhere a partial summary judgment decides only some aspects of a liability claim ... the ruling is not one |8properly certified for an immediate appeal under Article 1915(B)”. Templet v. State ex rel. Dept. of Public Safety and Corrections, 05-1903, p. 7 (La.App. 1 Cir. 11/3/06), 951 So.2d 182, 186. We agree.

In considering whether a judgment is properly designated as a final judgment pursuant to Article 1915(B), a court must take into account judicial administrative interests as well as the equities involved. Messinger, 04-1664 at p. 13, 894 So.2d at 1122 (citations omitted). Factors that may be considered, although not exclusive, when determining whether a partial judgment should be certified as appealable include: 1) the relationship between the adjudicated and unadjudicated claims; 2) the possibility that the need for review might or might not be mooted by future developments in the trial court; 3) the possibility that the reviewing court might be obliged to consider the same issue a second time; and 4) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense and the like. However, the overriding inquiry for the trial court is whether there is no just reason for the delay. Messinger, 04-1664 at p. 14, 876 So.2d at 1122-23 (citations omitted).

Considering these factors, we find that the trial court erred in determining that the partial summary judgment at issue was immediately appealable. The partial judgment did not adjudicate all of the liability issues. The remaining liability issues are closely related to the one issue decided by the trial court. As in Creighton, Richards & Higdon, L.L.C. v. Richards Clearview, L.L.C., 09-247, pp. 5-6 (La.App. 5 Cir. 10/29/09), 28 So.3d 391, 393, we find that judicial resources would be wasted by the appellate review of the partial summary judgment at this time, considering the probability of a later appeal involving the adjudication of the | Remaining claims. Id. Accordingly, we find that this matter is not ripe for immediate appeal.

Conclusion

For the above discussed reasons, the appeal is dismissed without prejudice at appellants’ costs. The order certifying the motion for partial summary judgment as final pursuant to La.C.C.P. art. 1915(B)(1) is vacated. The case is remanded to the district court for further proceedings.

MOTION TO DISMISS APPEAL GRANTED; APPEAL DISMISSED WITHOUT PREJUDICE; CERTIFICATION OF APPEALABILITY ISSUED BY TRIAL COURT VACATED; REMANDED FOR FURTHER PROCEEDINGS.

      . Pursuant to La.C.C.P. art. 865, we are authorized to construe every pleading so as to do substantial justice. Smith v. Trattler, 96-225, p. 2 (La.App. 5 Cir. 9/18/96), 681 So.2d 961, 963. Although styled as an "answer" to the appeal, the pleading seeks a dismissal rather than modification, revision or reversal of the judgment. It also does not seek damages. See: La.C.C.P. art. 2133 ("An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or ... demands damages against the appellant.”). Therefore, appellee’s filing in the Court is properly considered a motion to dismiss the appeal.

      . District Court proceeding number 622-532, Appellate proceeding number 10CA538.

      . District Court proceeding number 610-491, Appellate proceeding number 10CA539.

      . Rule 9.5 provides:
      All judgments, orders, and rulings requiring the court’s signature shall either be presented to the judge for signature when rendered or, if presented later, contain the typewritten name of the judge who rendered the judgment, order, or ruling.
      If presented later, the responsible attorney or the unrepresented party shall circulate the proposed judgment, order, or ruling to counsel for all parties and to unrepresented parties and allow at least three working days for comment before presentation to the court. When submitted, the proposed judgment, order, or ruling shall be accompanied by a certificate regarding the date of mailing, hand delivery, or other method of delivery of the document to other counsel of record and to unrepresented parties, stating whether any opposition was received.
      The page of the judgment, order, or ruling containing the judge's signature line shall reflect the docket number and title(s) of the pleading(s) at issue.
      This rule does not apply to default judgments.

      . Also, we decline to convert the improper appeal to a supervisory writ application. The appellants never sought writs from the interlocutory ruling. They filed their first motion for devolutive appeal 60 days from the clerk’s mailing of notice of the January 14, 2010 judgment. Even construing the motion for appeal as a notice of intent to seek writs, the writ would have been untimely filed beyond the 30-day period required by Uniform Rules — Courts of Appeal, Rule 4-3. Even if timely, we would decline to convert because this partial, non-final judgment may be revised at any time before resolution of the entire case. See: La.C.C.P. art. 1915(B)(2). Accord: Kantas v. Board of Sup'rs of Louisiana State University and Agricultural and Mechanical College ex rel. LSU Eye Center-New Orleans, 00-0170 (La.App. 4 Cir. 3/1/00), 756 So.2d 1154, 1155-56.


author: ROTHSCHILD, Judge.

text:
    AFCO CREDIT CORPORATION v. METRO DISPOSAL, INC.
    No. 10-CA-655.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 3, 2010.

      Randy G. McKee, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Gustave A. Fritchie, III, Attorney at Law, New Orleans, LA, for Defendant/Ap-pellees.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   ROTHSCHILD, Judge.

12Metro Disposal, Inc. (“Metro”) seeks to appeal a summary judgment entered in favor of third party defendant, Gillis, Ellis, & Baker, Inc. (“GEB”). For the following reasons, we dismiss this appeal.

STATEMENT OF THE CASE

On July 9, 2007, AFCO Credit Corporation (“AFCO”) filed a “Petition for Monies Due on Premium Finance Agreement” against Metro, asserting that it provided premium financing to Metro in 2006 for certain insurance policies purchased by Metro. According to AFCO, it financed $293,344.25 under two finance agreements, but Metro failed to make the payment due on October 16, 2006, and has failed to make any payments thereafter. In its petition, AFCO seeks payment of all outstanding balances due on the commercial premium finance agreements, interest, costs, and attorney fees.

On November 14, 2007, Metro filed an “Answer and Third Party Demand,” in which it set forth a general denial of AFCO’s claims and named GEB as a third party defendant. In its Third Party Demand, Metro asserts that if it is found liable |sto AFCO, it is owed contribution and indemnity from GEB, because GEB obtained incorrect commercial insurance quotes from the Louisiana Automobile Insurance Plan that resulted in Metro changing its financing for insurance from AFCO to another finance company in October 2006. Metro asserts that it satisfied its obligations to AFCO, but GEB failed to reflect Metro’s previous payments to AFCO and to provide an accounting to AFCO. Metro claims that any damage that may have occurred was caused by GEB’s negligence or lack of supervision.

On August 13, 2009, AFCO filed a Motion for Summary Judgment, asserting that there are no genuine issues of material fact and that based on the evidence presented in support of the motion, it is entitled to summary judgment awarding it the relief sought in AFCO’s petition. Metro filed an Opposition to AFCO’s Motion for Summary Judgment on November 2, 2009. On November 20, 2009, GEB filed a Motion for Summary Judgment, asserting that there are no genuine issues of material fact and that it is entitled to summary judgment dismissing all claims asserted against it by Metro.

The Motions for Summary Judgment filed by AFCO and GEB came for hearing before the trial court on January 7, 2010. After noting that there was no appearance by Metro at the hearing and stating that both motions were considered and believed to be well-founded, the trial judge granted the Motions for Summary Judgment filed by AFCO and GEB. That same date, the trial judge signed a written judgment granting GEB’s Motion for Summary Judgment and dismissing all of Metro’s claims with prejudice. He also signed a written judgment granting AFCO’s Motion for Summary Judgment and awarding it $91,157.45, plus interest, attorney fees, and costs. Notice of signing of the judgments was issued and mailed to counsel for Metro by the Clerk of Court on January 14, 2010.

|4On February 1, 2010, Metro filed Motions for New Trial and a Motion to ReSet the hearings on the Motions for Summary Judgment. On February 2, 2010, the trial judge re-set both Motions for Summary Judgment for hearing on March 10, 2010. The trial judge also signed an order purporting to set aside the summary judgment entered in favor of GEB. After hearing these matters on March 10, 2010, the trial judge again granted the Motions for Summary Judgment filed by AFCO and GEB. On May 17, 2010, Metro filed a Motion for Appeal, seeking to appeal the summary judgment granted in favor of GEB on March 10, 2010.

DISCUSSION

In its brief on appeal, Metro contends that the trial court erred in granting GEB’s Motion for Summary Judgment. However, after review of the record in this matter, we find that this appeal is not properly before us and cannot be considered.

LSA-C.C.P. art. 2087(A) provides that a devolutive appeal may only be taken within sixty days of either: 1) the expiration of the delay for applying for a new trial, if no application has been filed timely; or 2) the date of the making of notice of the court’s refusal to grant a timely application for a new trial. LSA-C.C.P. art. 1974 provides:

The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served the notice of judgment as required by Article 1913.

An untimely motion for new trial will not serve to interrupt the delays for taking a devolutive appeal. Worner v. Worner, 95-833, p. 3 (La.App. 5 Cir. 1/8/96), 666 So.2d 1232, 1234. Further, absent a timely motion for appeal, the appellate court lacks jurisdiction over the appeal. Guillot v. Consolidated Freightways, 583 So.2d 113, 114 (La.App. 5 Cir.1991).

|fiIn Falkins v. Jefferson Parish School Board, 97-26 (La.App. 5 Cir. 5/9/97), 695 So.2d 1005, this Court dismissed the appeal for lack of appellate jurisdiction. In Falkins, a motion to amend judgment/motion for new trial was filed 16 days after mailing of notice of the initial judgment and thus, was untimely. This Court found that the amended judgment rendered pursuant to the untimely motion for new trial was invalid and without legal effect. Thus, only the original judgment was appealable and the motion for appeal was not filed within the time limitations for appealing the original judgment.

In the present case, on January 7, 2010, the trial judge granted summary judgment in favor of GEB and AFCO, granting the relief sought by AFCO and dismissing all of Metro’s claims against GEB. Notice of signing of these judgments was mailed to counsel for Metro on January 14, 2010. Metro did not file its Motion for New Trial until February 1, 2010, which was after the delay for filing for a new trial had expired. Accordingly, the judgment that was rendered on March 10, 2010 pursuant to the untimely Motion for New Trial was invalid and without legal effect. The January 7, 2010 judgment was the only appealable final judgment, but the Motion for Appeal filed May 17, 2010 was not filed within the time limitations for appealing this judgment. LSA-C.C.P. art. 2087. Thus, because this appeal is untimely, this Court is without jurisdiction to consider the merits.

DECREE

For the foregoing reasons, we dismiss the appeal filed by Metro.

APPEAL DISMISSED.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Corey D. KELLY.
    No. 2010-KA-0853.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| ¡statement of case

On October 22, 2009, the State filed a bill of information charging the defendant with first degree robbery in violation of La. R.S. 14:64.1. On October 27, 2009, defendant appeared for arraignment; counsel was appointed to represent him, and he pled not guilty. Defense motions were heard on December 14, 2009. The district court denied Defendant’s motions to suppress the evidence and identification.

The case proceeded to trial on February 25, 2010. The twelve-member jury found defendant guilty as charged. After the verdict, Defendant filed a motion for post verdict judgment of acquittal and a motion for new trial.

On March 12, 2009, the trial court denied defendant’s post verdict motions. After Defendant waived all delays, the trial court sentenced him to three years imprisonment at hard labor. Defendant’s motion for appeal was granted.

|2Piane Jennings testified that on August 9, 2009, at approximately 5:45 p.m., she left work at the Priestly Charter High School and was walking to her car which was parked near the intersection of Palmyra Street and South Prieur Street. Ms. Jennings was carrying a large stack of papers. She noticed someone behind her, which caused her to be concerned, given the hour of the day. Ms. Jennings opened the driver’s side door and threw her purse in. Then she opened the trunk and threw the stacks of papers inside.

While she was putting the papers in the trunk, the individual approached and asked her for directions, and Ms. Jennings replied that she would retrieve a map from her car. Ms. Jennings opened the door, reached into the car, and retrieved the map. She opened the map and was looking at it when she heard the individual say something which she could not understand. She brought the map down and saw that he had his hand under his shirt. He told her, “I have a gun. Give me your keys. I will shoot you.” She looked down and could see that there something shaped like a gun under his shirt, which he was pointing at her.

Once Ms. Jennings realized what was happening, she became frightened, but thought it was important to keep eye contact with the man, and quickly handed him the keys. The individual said, “Don’t make a sound. Don’t scream. Don’t do anything.” He told her to get into the car, but Ms. Jennings refused and began walking backwards. Although he threatened to shoot her, she continued to walk backwards until she reached the corner, at which time she turned around and ran as fast as she could into the school. Ms. Jennings testified that when she turned the corner, she heard the car start and the tires squeal.

Once inside the school, Ms. Jennings started screaming for help, but no one was present, so she ran into the office and called 911. She met the police outside lathe building and advised the responding officers that the perpetrator was wearing a baggy black t-shirt, jeans, and gym shoes. Ms. Jennings also advised that the perpetrator was taller than she was, but not especially tall. She told the police that he did not have twists or dreads in his hair, and that it was short but not well kept, and that his complexion was brown.

Ms. Jennings spoke with two district officers before Detective Krister Villen arrived. Ms. Jennings was in Detective Vil-len’s vehicle when a call came in over the radio advising that a vehicle matching the description of the victim’s automobile had been located. Ms. Jennings and Detective Villen immediately drove to the location, where she identified her car. The officers told her there was a purse in the adjacent trash can, which Ms. Jennings also identified as hers, but neither her keys nor her wallet was inside.

Ms. Jennings was subsequently informed that the officers had a suspect and asked her if she was willing to see whether she could make an identification. She agreed, and the officers drove Ms. Jennings to where the suspect was located nearby. Ms. Jennings rode in the front seat of the car. When the vehicle reached the suspect, Ms. Jennings had the officers bring the suspect closer, and she rolled down the window. Ms. Jennings noticed that the man was not dressed in the same clothing as the robber, as he was wearing a white tank top; however, she also noticed that he was holding a black tee shirt. At that time, Ms. Jennings positively identified the suspect as the man who had robbed her at gunpoint, and stated that she was one hundred percent certain of her identification.

After Ms. Jennings got home, she contacted the two banks where she had accounts and learned that cash advances totaling over $1,200.00 had been issued on her two missing debit cards.

I ^Sergeant Ronnie Stevens testified that on the afternoon in question, he responded to a radio call of a robbery occurring in the 300 block of South Prieur Street. A description of the perpetrator and the vehicle was broadcast. In conjunction with other units, Sergeant Stevens began canvassing the area. As he was proceeding on Bien-ville Street, approximately twenty-five to thirty minutes after the call went out, he observed a subject roughly matching the description of the perpetrator cross Bien-ville Street at its intersection with North Tonti Street. He observed that the subject was wearing blue jeans and had a black tee shirt draped across his shoulder. He also observed that the subject appeared to be looking around and that he was walking at a fast pace.

As Sergeant Stevens crossed North Tonti Street, he looked down the block and noticed a black Toyota Canary matching the description of the victim’s automobile. Sergeant Stevens stopped his vehicle at the intersection and noted that the vehicle also had a Colorado license plate, as had been reported. Seeing that the vehicle was unoccupied and that there were no other persons in the immediate vicinity, Sergeant Stevens turned his attention back to the individual he had seen walking across Bienville Street, not only because his clothing fit the description provided of the perpetrator, but also because the subject had exhibited a quick pace and was looking around. Sergeant Stevens testified that his vehicle, because of the large searchlight, was easily identifiable as a police vehicle.

As Sergeant Stevens continued to watch the individual, he witnessed him turn onto the next side street. Sergeant Stevens followed the individual and was able to stop and detain him at that time, after which he notified Detective Villen.

| ¿Sergeant Stevens subsequently learned that the defendant lived in the 400 block of North Tonti Street, one block from where the vehicle was recovered.

Gwendolyn Kelly, Corey Kelly’s mother, testified that she learned her son had been arrested when he called her from Parish Prison. She stated that on the evening in question, he returned home from work, took a shower, and shaved. Normally, he drives his own car, but he was not able to get it started that day, either before or after work. Ms. Kelly further testified that after cleaning up, he left the house to go the store but did not immediately return, which caused her concern, because it was his custom to only leave the house briefly, as he wanted to be near the phone in case he was called in for an extra shift at work.

ERRORS PATENT

A review of the record for errors patent reveals a sentencing error. La. R.S. 14:64.1 requires that sentence be served without benefit of probation, parole or suspension of sentence. In this case, the trial court failed to include this restriction in the defendant’s sentence and thereby imposed an illegally lenient sentence. However, in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. La. R.S. 15:301.1 A; State v. Hall, 2002-1098 (La.App. 4 Cir. 3/19/03), 843 So.2d 488. Because the statute is self-activating, however, the error requires no action by this Court.

ASSIGNMENT OF ERROR NUMBER 1

In the first assignment of error, Defendant contends the evidence was insufficient to establish his guilt beyond a reasonable doubt. With regard to | (¡claims that evidence is constitutionally insufficient to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987).

The appellate court “may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime.” State v. Mussall, 523 So.2d 1305, 1311 (La.1988); State v. Monds, 91-0589, p. 4 (La.App. 4 Cir. 1/14/94), 631 So.2d 536, 539. Thus, if the reviewing court finds that no rational trier of fact, viewing all the evidence in a light favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt, the conviction cannot stand constitutional muster. Mussall, 523 So.2d at 1309. When identity is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden to establish every element of the crime charged beyond a reasonable doubt. State v. Smith, 430 So.2d 31, 45 (La.1983).

It is well-settled that an appellate court “is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” Mussall, 523 So.2d at 1311; State v. Smith, 600 So.2d 1319, 1324 (La.1992). As noted by the Louisiana Supreme Court, “the court is not to substitute its judgment of what the verdict should be for that of the jury, but at the same time the jury cannot be permitted to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.” Mussall, 523 So.2d at 1311 (citing 2 Charles Alan Wright, Federal Practice & Procedure, Criminal 2d, Sec. 467, at 660-661 & n. 23 (2d ed.1982)).

|7The elements of first degree robbery are articulated in La. R.S. 14:64.1(A), which defines the crime as follows:

First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by the use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.

In this case, although Defendant argues that the weight of the State’s evidence was insufficient to sustain his conviction, he does not directly challenge Ms. Jennings’ identification on grounds that he does not match the description provided; that Ms. Jennings was less than confident in her identification; or that circumstances prevented Ms. Jennings from observing her perpetrator during the commission of the crime. Rather, Defendant contends that the State’s proof was insufficient because no evidence was introduced which tied him the transactions involving Ms. Jennings’ debit cards. Defendant also argues that no stolen property was located on his person when apprehended, and that the overall circumstances of his apprehension were not indicative of guilt, noting there is nothing nefarious about walking in one’s own neighborhood. Defendant further argues that no evidence was introduced to establish whether his tee shirt was in fact dirty, as Ms. Jennings described.

Defendant also suggests that he had already been arrested when Ms. Jennings’ debit cards were used. However, no evidence or testimony was offered which established when the transactions involving the victim’s debit cards occurred, so this point can neither be taken as pointing towards guilt or innocence.

Despite the lack of evidence tying Defendant directly to the use of the victim’s debit cards, we find that the record demonstrates that the evidence was sufficient for a reasonable juror to determine Defendant’s guilt beyond a treasonable doubt. The evidence at trial established that Ms. Jennings positively identified Defendant as the perpetrator; that the Defendant was observed walking away from the proximate location of Ms. Jennings’ vehicle only forty minutes after the robbery occurred; and that Defendant’s clothing matched that worn by the perpetrator.

ASSIGNMENT OF ERROR NUMBER 2

In his final assignment of error, Defendant contends that the trial court erred in denying his motion for new trial pursuant to La.C.Cr.P. art. 851(1) and (5), which provide:

The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

Defendant argues that the trial erred in failing to afford him a contradictory hearing on his motion for new trial; however, the record reflects that Defendant submitted the motion without argument, and the record does not evidence that he intended to call any witnesses or submit any evidence, or that Defendant was prevented from doing same.

Defendant’s argument with regard to the denial of his motion for new trial based upon La.C.Cr.P. art. 851(1), alleging that the verdict is contrary to the law and the evidence, is not subject to review on appeal. State v. Guillory, 2010-1231, p. 3 (La.10/8/10), 45 So.3d 612, 614-615; State v. Snyder, 98-1078, p. 37, n. 21 (La.4/14/99), 750 So.2d 832, 859, cert. granted, judgment vacated on other grounds, Snyder v. Louisiana, 545 U.S. 1137, 125 S.Ct. 2956, 162 L.Ed.2d 884 (2005); State v. Sparkman, 2008-0472, p. 5 (La.App. 4 Cir. 1/28/09), 5 So.3d 891, 894.

With respect to the trial court’s denial of Defendant’s motion for new trial on as set forth in La.C.Cr.P. art. 851(5), this ruling is reviewable under an abuse of discretion standard. Guillory, p. 6, 45 So.3d at 616. Considering the record in its entirety, we do not find that the ends of justice would be served by granting Defendant a new trial in this case. Accordingly, we do not find that the trial court abused its discretion in denying Defendant’s motion for new trial pursuant to La.C.Cr.P. art. 851(5).

CONCLUSION

For the foregoing reasons, Defendant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . The defendant's clothing items — a pair of blue jeans, a black t-shirt, sized 2x, and a belt — were confiscated and introduced at trial.

      .
      In the instant case ... the denial of a motion for new trial based upon La.C.Cr.P. art. 851(1) is not subject to review on appeal. State v. Skelton, 340 So.2d 256, 259 (La.1976) ("[W]e have uniformly held that a bill of exceptions reserved to the refusal of the trial judge to grant a motion for a new trial based on Article 851(1), relative to sufficiency of the evidence presents nothing for our review.”) (citations omitted); State v. Bartley, 329 So.2d 431, 433 (La.1976) (“It is well established in Louisiana that an assignment of error reserved to the denial of a motion for a new trial alleging that the verdict is contrary to the law and the evidence presents nothing for appellate review.”) (citations omitted).

        State v. Snyder, 1998-1078, p. 37 (La.4/14/99), 750 So.2d 832, 867, n. 21 (emphasis added).


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

text:
    Linda MIXTER v. David WILSON and his Insurance Company, Allstate Insurance Company.
    No. 10-CA-464.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 14, 2010.

      Fred R. Defrancesch, Tomy J. Acosta, Attorneys at Law, Trial Counsel, LaPlace, Louisiana and James A. Harry, Attorney at Law, Appellate Counsel, Springfield, Louisiana, for Appellant, Linda Mixter.
    Carl R. Danna, Kristen H. Santos, Attorneys at Law, New Orleans, Louisiana, for Appellee, Allstate Insurance Company.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, Ms. Mixter seeks review of the trial court’s award of general damages. For the following reasons, we amend and affirm as amended.

Facts and Procedural History

On April 23, 2008, Ms. Mixter was in a motor vehicle accident, in which her vehicle was rear-ended by a vehicle driven by Mr. David Wilson. At that time, Mr. Wilson was insured by defendant, Allstate Insurance Company (“Allstate”).

Later, on the evening of April 23, 2008, Ms. Mixter presented to Ochsner Foundation Hospital Emergency Room with complaints of injuries from the motor vehicle accident. That evening, Ms. Mixter was diagnosed with and treated for neck strain and contusions of the knee and chest wall.

On April 26, 2008, Ms. Mixter presented for treatment with a chiropractor, Dr. Robert R. Dale, complaining of cervical and upper thoracic pain, muscle spasms, stiffness, headaches, lumbosacral pain, bilateral sacroiliac joint pain, and shoulder and hip pain. After examination, Dr. Dale diagnosed Ms. Mixter with | ^cervical sprain/strain, lumbosacral sprain/strain, muscle spasm, knee bursitis, and shoulder bursitis, among other things. Ms. Mixter continued treatment with Dr. Dale for injuries received in the instant accident through January 6, 2009.

On July 1, 2008, Dr. Dale reported that Ms. Mixter was still experiencing pain in her neck, arm, and shoulder. Dr. Dale sent Ms. Mixter for a MRI of the cervical spine on July 25, 2008. Dr. Daniel Johnson, radiologist, interpreted the images finding “central posterior and slightly downward herniation of C3-4 disc; left posterolateral projection of disc and spurring at C4-5 disc ...; broadly based slender posterior and downward herniation of C5-6 disc; and 1-2 mm posterior bulging of C6-7 disc.”

On August 25, 2008, Ms. Mixter filed suit against David Wilson and his insurer, Allstate, for damages resulting from injuries that she received in the accident. Also, that same month, Ms. Mixter was referred by her attorney for treatment by Dr. Vaclav Hamsa.

Dr. Hamsa, an orthopedic surgeon, diagnosed a “cervical discogenic sprain with a disc rupture at C4-5, C5-6: traumatic disc bulge at C6-C7 ...” in Ms. Mixter. Dr. Hamsa treated her conservatively with anti-inflammatory medication, pain medication, and muscle relaxants. Dr. Hamsa continued treatment through the end of the year with no decrease, however, in the cervical pain. Dr. Hamsa, thereafter, referred Ms. Mixter to Dr. Fred DeFran-cesch, a physical medicine and rehabilitation specialist.

On December 30, 2008, Ms. Mixter presented to Dr. DeFrancesch who diagnosed, among other things, “facet disorder; disc disorder; radiculitis in the right the[sie] C5-6 distribution; and low back pain.” Dr. DeFrancesch performed a series of three cervical epidural injections, which alleviated Ms. Mixter’s pain.

|40n January 19, 2009, Ms. Mixter returned to Dr. Hamsa, who opined that the trauma of the instant accident caused impairment of her spine, including 8% for the disc ruptures at C4-5 and C5-6, 2% for the traumatic disc bulge at C6-7, and 1% for the recurrent soreness of the lumber spine. Further, he opined that the right shoulder continued to exhibit impairment totaling 8%, which would equal 3% impairment of her right arm. In total, Dr. Hamsa attributed an 11% whole man impairment of the spine to the accident in question and 3% whole man impairment of the right arm.

On January 4, 2010, the bench trial was held. At trial, the parties stipulated that plaintiffs’ damages did not exceed the policy limits of $50,000.00. Further, the parties stipulated to the introduction of plaintiffs medical bills in globo, the introduction of a certified copy of the Allstate automobile liability insurance policy in effect on the day of the accident, and, finally, the report from defendant’s orthopedic surgeon, Dr. Cazale, reviewing Ms. Mix-ter’s medical records in connection with this accident. Finally, Ms. Mixter testified as to her injuries, her pain level, her treatment, her physical limitations, and her ongoing pain.

At the close of trial, the judge took the matter under advisement. On February 4, 2010, the trial court rendered its decision in favor of the plaintiff, Ms. Mixter, and, relying on Candy Jean Day v. Silver Oak Cas., Inc., 28,566 (La.App. 2 Cir. 8/21/96), 679 So.2d 486, 491, awarded $9,000.00 for pain and suffering and $10,876.96 for past medicals.

Now, Ms. Mixter argues that the trial court’s award of $9,000.00 for pain and suffering is an abuse of its discretion. Specifically, Ms. Mixter points out that the trial court found that Ms. Mixter suffered damage to three cervical discs in this accident, that Ms. Mixter sought medical treatment for the pain resultant from her injuries for at least twelve months, and that Ms. Mixter suffered with an 11% | ¡impairment after this accident, yet determined that the range of general damages fell between $3,000.00 and $14,000.00. Ms. Mixter contends that the trial judge’s award was manifestly erroneous. We agree.

General damages are those that may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.” Duncan v. Kansas City S. Ry. Co., 00-0066 (La.10/30/00), 773 So.2d 670, 682-83(quoting Keeth v. Dep’t. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993)). In appellate review of general damage awards, the court must accord much discretion to the trial court judge or jury. La. C.C. art. 2324.1; Reck v. Stevens, 373 So.2d 498 (La.1979).

The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Because discretion vested in the trial court is “great,” and even vast, an appellate court should rarely disturb an award of general damages. Id. at 1261.

It is only when the award is, in either direction, beyond that, which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances, that the appellate court should increase or reduce the award. Id. The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. Nat’l Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089. Only if the reviewing court determines that the | strial court has abused its “much discretion” may it refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

In the present case, the trial court found that the accident in this case caused Ms. Mixter’s “cervical/lumbosacral sprain/ strain,” which required epidural steroid injections to relieve the pain. An MRI of Ms. Mixter’s cervical spine revealed two ruptured discs and one bulging disc. Further, an orthopedic surgeon identified an 11% whole man impairment of the spine, attributable to the accident in question. The same surgeon also identified an 8% whole man impairment of the right arm, attributable to the accident in question. Although Ms. Mister was unemployed at the time of trial, she testified that the pain as a result of her injuries restricts her ability to keep house and care for her aging parents everyday.

Based on the record before us, we agree with the trial court that Ms. Mixter presented sufficient evidence, including testimony and medical records, to substantiate her injuries from this accident and the resultant expense for medical treatment, which lasted longer than twelve months. Moreover, after analyzing the facts and circumstances peculiar to this particular case and plaintiff, we conclude that the trial court abused its vast discretion in its award of $9,000.00 for general damages.

After determining that an award for general damages is an abuse of the trial court’s discretion, this Court can review prior awards to determine the highest or lowest point, which is reasonably within that discretion. Herzog v. Fabacher, 01-432 (La.App. 5 Cir. 10/17/01), 800 So.2d 997, 1000 (citing Sly v. Morris, 99-884 (La.App. 5 Cir.1/25/00), 750 So.2d 1163). Our review of the jurisprudence reveals that awards for cervical spine injuries requiring treatment with injections are between $30,000.00 and $45,000.00. See Moody v. Cummings, 09-1233 (La.App. 4 Cir. 4/14/10), 37 So.3d 1054, 1062-1063 (general damages of $45,000.00 is adequate for three bulging discs in his cervical spine, pain for a period of over four years); Andrus v. Board, (La.App. 3 Cir.1993), 626 So.2d 1224, 1228 (appellate court increased plaintiffs award for general damages to $30,000.00 for mild disc protrusion and chronic soft tissue injury with pain for two to three years); Friedmann v. Landa, 573 So.2d 1255 (La.App. 4th Cir.1991) (general damages award of $35,000.00 is adequate for chronic back pain and spasms that required treatment with steroid injections for two years after accident). Accordingly, we find that lowest permissible award to Ms. Mixter for her pain and suffering caused by this accident is $30,000.00.

In her second assignment of error, Ms. Mixter argues that the trial judge erred in failing to award her damages for loss of enjoyment of life. Where a trial court’s judgment is silent with respect to a party’s claim, it is presumed that the trial court denied the relief sought. Martinez v. Reno, 99-114 (La.App. 5 Cir. 9/15/99), 742 So.2d 1014. Although loss of enjoyment of life may be compensated as a separate claim for general damages under La. C.C. art. 2315, whether the plaintiff has presented evidence of a loss of enjoyment of life depends on the particular facts of the case, and should be left to the district court’s discretion on a case-by-case analysis. McGee v. A C and S, Inc., 05-1036 (La.06), 933 So.2d 770, 779.

Here, although Ms. Mixter testified that her injuries made it harder for her to do housework and take care of her parents, she did not present further testimony | «regarding her loss of enjoyment of life. Accordingly, we cannot say that the trial court erred in failing to award Ms. Mixter separately for her loss of enjoyment of life.

For the foregoing reasons, we amend the judgment of the trial court to award $30,000.00 in general damages to Ms. Mix-ter. In all other aspects, we affirm the judgment of the trial court. Costs of this appeal are to be paid by Allstate Insurance Company.

AMENDED, AND AFFIRMED AS AMENDED.

WICKER, J., concurs with reason.

WICKER, J.

concurs with reasons.

|,I concur and write separately only to add that we do not substitute our own findings for that of the trial court. Instead, we find that, in the face of its own findings, the trial court committed manifest error in its award of general damages.

The trial court found that, due to the accident, Ms. Mixter was diagnosed with a mild bulge of the disc at C3-4 and C5-6 and a posterolateral projection of the disc at C4-5 which caused her to suffer 11% whole body impairment, experience pain for a duration in excess of twelve months, and experience a curtailment in her daily activities. As stated in the opinion, a review of the jurisprudence reveals that the range of awards for persons with similar injuries as Ms. Mixter is between $80,000 and $45,000. Because the trial court further found that a subsequent accident prolonged Ms. Mixter’s recovery, I agree that the lowest permissible award in general damages is $80,000.

      . In the record, plaintiff, her attorney, and the trial judge state that the accident in question occurred on March 23, 2008. The medical records introduced by plaintiff, however, reflect that she presented at the Ochsner Foundation Hospital Emergency Room on April 23, 2008 for treatment of injuries sustained in a rear-end collision earlier that day. Thus, for the purposes of this opinion, we will refer to the date of the accident as April 23, 2008.

      . In support of her argument that her award was inadequate, Ms. Mixter relies on Augillard v. Gaspard, 01-1333 (La.App. 5 Cir. 5/30/02), 820 So.2d 1177, 1179. In Augil-lard, the plaintiff suffered a laceration and two bilateral "protruding" or “bulging” discs, which did not require surgical intervention. This Court found that the award of $68,500 in general damages was abusively low for a laceration and two bulging or protruding discs. Further, this Court determined that the lowest possible amount of all awards for general damages for two bulging discs, that did not require surgery, and a laceration was a minimum of $85,000. Id. at p. 1182. Here, Augillard is distinguishable from this case because, unlike Ms. Mixter, the plaintiff in Augillard suffered both a disfiguring laceration and two bulging discs in his accident, which would logically cause him more pain and suffering.


author: CLARENCE E. McMANUS, Judge.

text:
    CRESCENT CITY MOTORS, L.L.C. v. Rafael RAFIDI and Preferred Motors, Inc.
    No. 10-CA-609.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 14, 2010.

      Jimmy A. Castex, Melissa M. Swabacker, Deutsch, Kerrigan & Stiles, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Stephen D. Marx, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, Attorney at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

|20n August 4, 2005, Crescent City Motors, Inc. (CCM) filed a Petition for Breach of Contract or Alternatively, Rescission of Sale for Non-Payment alleging that it sold two cars to defendants, Rafael Rafidi and Preferred Motors, Inc., (Rafidi) and that defendants failed to remit the purchase price. After trial on the merits, the trial court rendered judgment dismissing plaintiffs petition with prejudice. Plaintiff appeals.

Patrick Voss, who was Vice President and CFO of CCM at the time of the sales, testified that in October and November of 2002, CCM sold two cars to Rafidi, who resold them. In 2003, as a part of its closing process, CCM conducted an accounting of all its business transactions and discovered that CCM’s records did not show that Rafidi had paid CCM for the cars. He contacted Rafidi about the cars via three demand letters. Rafidi did not provide sufficient proof of payment, since he did not provide cancelled checks matching the purchase price of the vehicles or receipts. The selling price of the first vehicle, a GMC Yukon, was |a$19,000 and the selling price of the second vehicle, a Chevrolet Model Z71, was $16,300.

Thereafter, Voss received a letter from Rafidi who stated that he paid for the cars, as evidenced by the transfer of title. In the letter, Rafidi said that his bill of sale and titles were receipts. He further stated that he was puzzled as to how Voss thought that he could have gotten the titles without paying for the vehicles.

Voss admitted that the permanent records on both of the vehicles were missing, and that it was very unusual for records like that to be missing. However, it was not impossible for Rafidi to obtain the vehicles without paying them, because on occasion vehicles would be let out without payment. Voss also stated that when Crescent City Motors, LLC enters into a sale of a used vehicle it created a buyer’s order, which is a transfer between the buyer and the seller. It could not produce the buyer’s orders in this case because the permanent files were missing. The only evidence produced at trial to show the sale of the vehicles was a page from an internal ledger, which reflected the transfer, but did not state that the vehicles had been paid for.

Rafael Rafidi testified that he was in the business of buying and selling used cars. Rafidi testified that he started his own business when he formed Preferred Auto Sales, Inc. in 1998, and that over the course of his dealings with CCM, he probably purchased around 200 vehicles. In the normal course of business, when he purchased a vehicle from a dealer he would accept the vehicle at the time of sale. His ordinary process was to visit the dealerships and find the cars he wanted, and negotiate a price with the dealership. They would write a bill of sale with all relevant information, and he would take possession of the vehicle. At some later point, the title clerk of the dealership would call him, and he would returned to the dealership, make payment for the cars and pick up the titles. The time between |4taking possession of the car and getting the title was at least one month, and sometimes longer.

Rafidi stated that during the normal course of his business dealing with CCM, he would not receive a receipt for payment. Rafidi further testified that his records were destroyed during Hurricane Katrina, so he had no current records of the transactions at issue.

Rafidi testified that, concerning these two vehicles, he did receive the titles from CCM.

Leona Hopkins testified that she was a Special Projects Coordinator for Blessey Marine (the management company for CCM). She became involved with the transaction between CCM and Rafidi while she was researching during the closing process of the dealership, and could find no record of payment for the two vehicles. She further testified that payment was ordinarily made when title was transferred, and she did not know of any arrangement that CCM had with any buyer that would allow vehicles to be given to the buyer without payment. Ms. Hopkins testified that she researched approximately a dozen vehicles during the closing of Crescent City Motors, not just those of Rafidi. In each of those cases, the person had the title, but had not paid for the vehicles.

Godual Martinez, who is a notary public and owns EFS Auto Title Company, was qualified as an expert on practices within the industry of auto title transfers. He stated that he does not transfer titles for his dealer customers unless the vehicle has been paid for, and he has received some kind of proof of payment. The standard procedure is that the customer comes in with a bill of sale, signed by the seller. They take the title and reassign it to the new owner, who subsequently receives the license plate and registration. They do not release the title without notification that there has been payment. On the titles at issue, it appears that the ^notary did the reassignments, however the signature was unclear and it was impossible to determine who that notary was.

Robert Hale, who owns an auto brokerage and is a buyer consultant, was Rafidi’s business partner as of December 2002. At that time, Rafidi already had another, established used car business, which purchased the two vehicles. In his years in the auto industry, he has never known a dealer to transfer title to a vehicle to a used car dealer without collecting the purchase price prior to the transfer. The title clerk or the person who assigns titles is responsible for collecting the funds at the time of the delivery of title.

At the end of trial, the court found that plaintiff failed to carry its burden of proving that Rafidi or Preferred Motors, Inc. did not pay for the vehicles. The court indicated that he understood that COM had lost the paperwork. However, he stated that he did not see one piece of paper, other than an internal general ledger, that shows amounts owed. There was nothing to show the act of sale, the price, if there was financing. The court then stated that “So that leaves me with a real hard problem of saying that it’s been proven that the amount is owed.” The court found for the defendant and dismissed plaintiffs claim.

ANALYSIS

In this appeal, COM alleges that the trial court erred in finding that Rafidi paid for the vehicles absent any “actual” proof and that the trial court erred in stating that the purchase price was not established.

The standard of review by an appellate court of a district court’s findings of fact is well known. The district court’s factual findings may not be set aside in the absence of manifest error or unless they are clearly wrong. Where there is a conflict in the testimony, inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable. In order to reverse a district court’s determination of a fact, a reviewing court must review the record in its entirety and (1) find a reasonable factual basis does not exist for the finding, and (2) further determine the record establishes the factfinder is Rclearly wrong or manifestly erroneous. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether the factfinder’s conclusion was a reasonable one.

White v. American Intern. Group, Inc., 08-1238 (La.App. 5 Cir. 3/24/09), 11 So.3d 21, 23.

A proper review of the record cannot be completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court. There must be a further determination that the factfinder’s conclusion is reasonable in light of the entire record. White, supra at 23, citing Ambrose v. New Orleans Department Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216, 220.

In a civil case, Louisiana courts require a plaintiff to fulfill his or her burden to prove a prima facie case. Fauntleroy v. Rainbow Marketers, 04-926 (La.App. 3 Cir. 11/10/04), 888 So.2d 1045. In ordinary civil actions, the plaintiff, in general, has the burden of proof and must prove the facts in issue by a preponderance of the evidence and not by some artificially created greater standard. Talbot v. Talbot, 03-0814 (La.12/12/03), 864 So.2d 590, 598. Proof by a preponderance of the evidence is defined as taking the evidence as a whole, the fact to be proved is more probable than not. White, supra.

According to the forgoing, it was plaintiffs burden of proving, by a preponderance of evidence, that Rafidi had not paid for the cars. To meet its burden, CCM introduced a page from its accounts receivables schedule in its books. There was no testimony by the person(s) who dealt with Rafidi at the time of the sales. CCM’s exhibit was admitted through the testimony of Patrick Voss, CFO, who said he became aware of the issue in 2003, and who did not testify as to any personal recollection or knowledge of the transaction. Voss stated that it was determined that Rafidi had not paid for the vehicles because CCM records failed to 17show payment. In addition, Voss admitted that permanent files of these two vehicles, including the buyer’s orders, were missing from its files.

Rafidi testified that it was his belief that he had paid for the autos at the time of transfer of title, either by cash or by check, as was customary within the industry. He further stated that had he not paid for the vehicles, he would not have been able to take title. He introduced the testimony of two experts concerning what constituted standard industry practice. Finally, he stated that he did not have records of these transactions because they had been destroyed during Hurricane Katrina.

As we stated supra, the issue before us is not whether the trial court was right or wrong, but whether its conclusion was a reasonable one. The trial court apparently found that CCM did not prove that Rafidi did not pay for the vehicles. Our review of the record before us reflects that the trial court was not manifestly erroneous or clearly wrong in this determination.

Defendants alleged via exception of no cause of action that plaintiffs had improperly named them in the petition. That exception was orally denied at trial at the conclusion of plaintiffs case. While defendant/appellees address this issue out of an abundance of caution in their appellee brief, they failed to file an answer to the appeal, and therefore could not raise the issue. LSA-C.C.P. art. 2133. However, since we find that the trial court did not err in finding plaintiff did not meet its burden of proof, and in dismissing plaintiffs action, this issue is moot.

For the above discussed reasons, we affirm the decision of the trial court. All costs are assessed against appellant.

AFFIRMED.