text:
    Leonard D. LALLA v. CALAMAR, N.V.
    No. 2008-CA-0952.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2009.

      Thomas A. Gennusa II, Joseph S. Pia-cun, Reid S. Uzee, Gennusa Piacun & Ruli, Metairie, LA, for Leonard D. Lalla.

      Romualdo Gonzalez, Kyle S. Sclafani, Braden Gonzalez & Sclafani, New Orleans, LA, for Calamar, N.V.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

^Defendant, Calamar, N.V. (“Calamar”), a Netherlands Antilles corporation doing business in the State of Louisiana, appeals the trial court’s judgment granting of a motion for summary judgment in favor of plaintiff, Leonard D. Lalla (“Mr. Lalla”), and denying Calamar’s cross motion for summary judgment. For the reasons that follow, we convert the appeal to a writ, grant the writ, and affirm the trial court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Lalla and Calamar negotiated a written Agreement to Purchase (“Agreement”) commercial property owned by Ca-lamar, located at 3311 Canal Street in New Orleans. Before Hurricane Katrina the property had been used as a Wal-greens drug store. In the negotiations both parties were represented by agents with commercial experience. The resulting Agreement executed on March 2, 2007 acknowledged that the property had been damaged by Hurricanes Katrina and Rita in 2005, and had been gutted but not restored. The purchase price was $1,900,000. The property was to be sold “as is”, subject to the following inspection clause:

J^PROPERTY CONDITION CLAUSE THE PURCHASER ACKNOWLEDGES THAT THE PRICE OF THE PROPERTY WAS NEGOTIATED BASED UPON THE PROPERTY’S PRESENT CONDITION: ACCORDINGLY, SELLER IS NOT OBLIGATED TO MAKE REPAIRS TO THE PROPERTY, UNLESS OTHERWISE STATED HEREIN, AND PURCHASER HAS NO RIGHT TO DEMAND ANY REPAIRS, INCLUDING REPAIRS REQUIRED BY LENDER. THE SELLER IS RESPONSIBLE FOR MAINTAINING THE PROPERTY IN SUBSTANTIALLY THE SAME OR BETTER CONDITION AS IT WAS WHEN PURCHASE AGREEMENT WAS FULLY EXECUTED. Within 20 calendar days, commencing the first day after acceptance of this agreement, PURCHASER may, at his expense, have any inspections made by experts or others of his choosing. Such inspections may include, but are not limited to, inspections of or for termites and other wood destroying insects, and/or damage from same, appliances, structures, roof, heating, cooling, electrical, plumbing systems, square footage, and any items addressed in the Property Disclosure Addendum. Upon completion of such inspections, PURCHASER must provide SELLER with a copy of all inspection reports. If PURCHASER is not satisfied with the present condition of the property as reflected in the inspection reports, PURCHASER must indicate in writing the deficiencies with which he is not satisfied and SELLER will have 72 hours to respond in writing his willingness to remedy the deficiencies. Should SELLER refuse to remedy any or all of the deficiencies listed by the PURCHASER, then PURCHASER shall have 24 hours from the date of SELLER’S written response or 24 hours from the date that SELLER’S response was due, whichever is earlier, to: (1) accept SELLER’S response to PURCHASER’S written requests; or (2) accept the property in its present condition, or (3) to elect to terminate the Agreement to Purchase. PURCHASER’S response shall be in writing.

The Agreement also provided for specific performance in the event of non-performance by the other party, all costs associated with a default, and the award of attorney’s fees in the event of a breach.

Mr. Lalla tendered a deposit in the amount of $50,000 in accordance with the terms of the Agreement. The Property Inspection Clause, which was the subject of a fair amount of negotiations between the parties, provided an inspection deadline of March 23, 2007. Mr. Lalla promptly retained an architect, Ladd LEhlinger (“Mr. Ehlinger”), to inspect the property. Following his inspection, Mr. Ehlinger identified various defects in the property and further reported that the approximate cost to “restore the building to functional occupancy” would be $600,000, including architectural and engineering fees,

On March 15, 2007, Mr. Lalla’s real estate agent, Maria McLellan, forwarded this information to Calamar’s real estate broker, Jason Lapene. On March 16, 2007, Calamar advised that it was refusing to repair the deficiencies or to reduce the purchase price. Within 24 hours of Cala-mar’s response, Mr. Lalla exercised his option to terminate the Agreement consistent with the written provisions of the Agreement, and demanded the return of his deposit. Calamar refused the return of the deposit. Only 15 days had elapsed from the time of signing of the Agreement to the time that Calamar was on clear notice that the sale would not occur.

On June 13, 2007, Mr. Lalla filed a petition for damages for breach of contract, consequential costs, return of the $50,000 deposit, and for costs and attorneys’ fees against Calamar. Calamar reconvened on August 10, 2007, seeking specific performance or forfeiture of the deposit, together with attorney’s fees, and costs.

On December 19, 2007, Mr. Lalla filed a motion for summary judgment. He argued that: 1) the terms of the Agreement were clear and explicit; 2) he was entitled to inspect the property for defects pursuant to the Property Condition Clause; 3) upon discovering the defects identified in the Inspection Report, he complied with the Agreement by timely providing Cala-mar with a copy of the | ^Inspection Report, and 4) because Calamar refused to remedy the defects or reduce the purchase price, he timely exercised his option to terminate the Agreement and sought the return of the deposit in full plus an equal amount, plus consequential damages, attorney’s fees and costs.

Calamar filed a cross motion for summary judgment, arguing that pursuant to the Agreement, Mr. Lalla accepted the property “as is” and, therefore, was not entitled to the relief sought. Calamar submits that Mr. Lalla, directly or through his agents, knew or should have known of the defects when he entered into the Agreement because they were open and obvious. Calamar also argued that the inspection reports were insufficient and not in customary format.

Both motions for summary judgment were heard by the trial court on February 15, 2008. The trial court granted Mr. Lalla’s motion for summary judgment and denied Calamar’s cross motion. The judgment was signed February 25, 2008. The judgment merely decreed that the summary judgment was “granted”. However, the judgment neither expressed what specific relief had been awarded to Mr. Lalla or what demand(s) Calamar must satisfy. Calamar’s motion for devolutive appeal followed.

PRELIMINARY DISCUSSION

Before we address the merits of the summary judgment in favor of Mr. Lalla, we must address the appealability of the judgment itself. The judgment itself, as we have noted, simply stated that summary judgment had been granted in Mr. Lalla’s favor. It also merely denied Cala-mar’s motion for summary judgment, but did not, for example, dismiss Calamar’s reconventional demand with prejudice. While such a judgment might qualify as a partial final judgment pursuant to La. | r,C.C.P. art. 1915(B)(1), it would need such a designation by the district judge in order for a party to have an appeal of right. Yokum v. Van Calsem, 07-0676, p. 5, 6 (La.App. 4 Cir. 3/26/08), 981 So.2d 725, 730. However, this judgment did not receive the requisite jurisdictional designation by the district judge. It is, therefore, an interlocutory judgment, and not a partial final judgment. An interlocutory judgment is not appealable unless expressly provided by law. La. C.C.P. art. 2083(C).

The proper procedural vehicle to seek review of an interlocutory judgment that is not immediately appealable is an application for supervisory writ. La. C.C.P. art. 2083. Gieck v. Tenet Healthcare Corp., 07-1597, p. 3 (La.App. 4 Cir. 1/23/08), 976 So.2d 767, 769. Therefore, in order for us to review this matter and grant any relief, it is necessary that we convert the appeal to an application for supervisory writ, which we grant. LSA-Const. art. V, § 10(A) provides that a court of appeal has “supervisory jurisdiction over cases which arise within its circuit.” First National Bank of Picayune v. Pearl River Fabricators, Inc., 06-2195, p. 11 (La.11/16/07), 971 So.2d 302, 310.

STANDARD OF REVIEW

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Hood v. Cotter, 08-0215, 08-0237, p. 5 (La.12/02/08), 5 So.3d 819, 822-23, 2008 WL 5146659. See also Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

|7A summary judgment shall be rendered forthwith if 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 a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 4 (La. App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the'party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted. Hood, 08-0215, p. 6, 5 So.3d at 823, 2008 WL 5146659.

In Hardy v. Bowie, 98-2821, p. 6 (La.9/8/99), 744 So.2d 606, 610, the Louisiana Supreme Court stated that “[a] fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Additionally, the Supreme Court stated that “[fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id.

DISCUSSION

Contracts have the effect of law between the parties, and the courts are bound to interpret them according to the common intent of the parties. La. C.C. arts. 1983 and 2045. If the words of a contract are clear, unambiguous, and lead to |sno absurd consequences, the court need not look beyond the contract language to determine the true intent of the parties. La. C.C. art. 2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. “When a contract is not ambiguous or does not lead to absurd consequences, it will be enforced as written and its interpretation is a question of law for a court to decide.” American Deposit Ins. Co. v. Myles, 2000-2457, p. 5 (La.4/25/01), 783 So.2d 1282, 1286. See also Associated Acquisitions, L.L.C. v. Carbone Properties of Audubon, L.L.C., 2007-0120, p. 6 (La.App. 4 Cir. 7/11/07), 962 So.2d 1102, 1106; Abshire v. Vermilion Parish School Bd., 02-2881, p. 5 (La.2003), 848 So.2d 552, 555. Meaning and intent of parties to a written instrument is ordinarily determined from the instrument’s four corners and extrinsic evidence is inadmissible either to explain or to contradict the instrument’s terms. Abshire, 02-2881, p. 5, 848 So.2d at 555, citing Ortego v. State, Dept. of Transp. and Dev., 96-1322 (La.2/25/97), 689 So.2d 1358. “The contract is the law between the parties, and no further interpretation may be made in search of the parties’ intent when the words of the contract are clear, explicit and lead to no absurd consequences.” Taylor v. Manuel, 01-0653, p. 3 (La.App. 3 Cir. 10/31/01), 799 So.2d 812, 815; citing Woolf & Magee v. Hughes, 95-863, p. 5 (La.App. 3 Cir. 12/6/95); 666 So.2d 1128, 1131; writ denied, 96-0073 (La.3/15/96), 669 So.2d 427.

Recalling the rules of summary judgment practice and review and of contract interpretation, we consider de novo the provisions of the contract in question. Calamar asserts that there are questions of material fact relative to the contradictory language of the Agreement and the parties’ intent as to the underlying transaction. More specifically, Calamar argues that the “as is” clause | fland other disclaimers relative to the condition of the property contradict the Property Condition Clause, creating an ambiguity in the Agreement and questions of fact as to the parties’ intent. We disagree.

Calamar acknowledges that it consented to the Property Condition Clause and participated in its revision. However, Cala-mar argues that there was an extra-contractual understanding between the agents of the parties that such language was only-allowed to stand to cover extraordinary hidden environmental conditions, not the open and obvious conditions of the property-

The Property Condition Clause contained in the Agreement is not limited to extraordinary hidden conditions. To the contrary, the clause specifically provided: “inspections may include, but are not limited to, inspections of or for termites and other wood destroying insects, and/or damage from same, appliances, structures, roof, heating, cooling, electrical, plumbing systems, square footage.... ”

Clearly, Mr. Lalla had the right to inspect the property for the type of defects described in the Property Condition Clause and others. Calamar could have insisted on language in its agreement which specifically restricted the scope of the inspection clause or could have eliminated the inspection clause altogether. Although additional inspection or “escape” clauses were in fact eliminated from preliminary drafts of the Agreement, the fact remains that Calamar knowingly consented to the Property Condition Clause contained in the final Agreement they executed. We conclude that the Property Condition Clause and the “as is” provision are not in conflict and do not create any ambiguity. The Agreement is clear and explicit. The property was offered for sale “as is” (considering the condition of the building following the two hurricanes), subject to Mr. Lalla’s final inspection.

110CaIamar further asserts that the trial court erred in failing to consider the nature of the defects alleged by Mr. Lalla in trying to avoid the Agreement. Specifically, Calamar contends that the inspection report includes the repair/replacement of such items as ceiling and ceiling grid system, electrical wiring, wall board and partitions, fixtures, light fixtures, HVAC piping and duct work, and glass store front, all conditions that were plainly obvious when the Agreement was signed. Cala-mar suggests that Mr. Lalla’s reliance on an inspection that pointed out such obvious defects is disingenuous and nothing more than a pretext to avoid the sale. Calamar relies upon Bond v. Broadway, 607 So.2d 865, 867 (La.App. 2 Cir.1992) in which the appeals court upheld a trial court’s factual determination that a prospective purchaser of a home could not wait until the night before a scheduled “as is” sale to make an inspection and, by “citing minor problems that were easily discoverable by simple inspection,” avoid the sale. On the facts Bond does not support Calamar. Mr. Lalla promptly exercised his right to an inspection, and engaged a professional architect who identified problems not discoverable on mere inspection. Nothing identified by the purchaser in Bond could affect the use of the property as a residence.

In Abbott v. Ryan, 06-1643, p. 10, 11 (La.App. 4 Cir. 8/1/07), 964 So.2d 1087, 1093, this court upheld the granting of a motion for summary judgment in favor of purchasers, ordering return of their1 deposit (only) because the purchase agreement had been terminated. The Abbott purchasers properly terminated the purchase agreement by timely adhering to the specific provisions of the agreement when the seller refused to remedy the deficiencies noted or reduce the price.

In this case, once Calamar elected not to meet the new demands of Mr. Lalla and Mr. Lalla elected not to purchase the property on the terms and conditions of lnthe Agreement; the Agreement was terminated, not breached. The obligations set out in the Agreement were null and void, ex-eept for the ancillary obligation of the return of the deposit. By the Agreement’s provisions, if the contract became null and void the only specific reference related to signing a cancellation. There was no provision for a deadline to return the deposit or attorney’s fees or costs.

“As a general rule, attorney fees are not due and owing a successful litigant unless specifically provided for by contract or by statute.” Beier Radio, Inc. v. Black Gold Marine, Inc., 83-2141 (La.4/2/84), 449 So.2d 1014, 1015. In the Agreement at hand, whose provisions are the law between the parties, there are two instances when an award of attorney’s fees would be appropriate. The first is in the event that the Seller is unable to timely deliver merchantable title. As the contract was terminated by the Purchaser, there was no obligation on part of the Seller to deliver title, hence no attorney’s fees are due.

The second possible provision for attorney’s fees is to the Purchaser “from the defaulting party” in enforcing its rights. Since no party is in default, there are no attorney’s fees due.

The only provision related to return of the deposit did not include a provision for attorney’s fees, costs or damages and no time frame within which to return the deposit.

Unless otherwise specified, if all express conditions are not timely met, or if this agreement is rendered null and void, the Seller’s Agent shall forthwith return the Purchasers deposit without any further liability on the part of either party, or the Seller’s Agent, regarding this Agreement.

|,.¿There is no contractual provision for attorney’s fees related to return of the deposit. There is no ‘right’ to be enforced. In the absence of stipulating a definite date and time, the deposit should have been returned to Mr. Lalla in a reasonable time. La. C.C. art. 1773. Jarrell v. Carter, et al., 93-600 (La.App. 1 Cir. 12/29/93), 632 So.2d 321, 324, writ denied 94-0700 (La.4/29/94), 637 So.2d 467.

CONCLUSION

Accordingly, we convert Calamar, NV’s appeal of the granting of the motion in summary judgment in favor of Mr. Lalla and denying Calamar NV’s cross motion for summary judgment to an application for supervisory writ and exercise our supervisory jurisdiction. We find that the Agreement is clear and unambiguous and must be enforced as written. We find that the trial judge did not err in granting Mr. Lalla’s motion for summary judgment and denying Calamar NV’s cross motion for summary judgment.

DECREE

It is ordered that the judgment on the principal demand in favor of Leonard D. Lalla and against Calamar, N.V. is affirmed.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; AFFIRMED.

      . The judgment submitted to the trial court for rendition incorrectly stated that Calamar’s motion for summary judgment is denied and Mr. Lalla's cross motion for summary judgment is granted. However, the record reflects that Mr. Lalla brought the motion for summary judgment, and Calamar brought the cross motion for summary judgment. Nevertheless, it is clear from the judgment that the trial court ruled in favor of Mr. Lalla.

      . The time lapsed was less time than the entire inspection period agreed to by the parties. At oral argument, counsel also agreed that this transaction was between sophisticated parties in a commercial transaction of close to $2 million.

      . La. C.C.P. art. 1915(B)(1) provides: "When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the 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.”

      . Earlier versions of the proposed agreement did not contain the "null and void” language. The parties could have provided that the Agreement was null and void with the exception of return of the deposit but did not do so.

      . The parties informed the court at oral argument that the deposit of $50,000 had been returned by Calamar and received by Lalla. Since the deposit has been returned, there is no further relief which can be granted by the court.

        . In an earlier proposed agreement, deposit was to be returned ‘immediately’.

      . The effect of affirming the summary judgment in favor of Lalla precludes granting Ca-lamar any relief on its reconventional demand against Lalla. La. R.S. 13:4231(3) and La. C.C.P. art. 1061(B).


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Raul A. RAMOS.
    No. 2008-KA-0860.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2009.
    Robert L. Freeman, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for State.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|, Defendant-Appellant appeals his conviction and sentence of two years active probation for cocaine possession. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Deputy Damien Anthony of the Criminal Sheriffs Office testified that on September 25, 2007, he was on duty at Central Lockup and received custody of Raul Ramos from Officer Mark Jovanich of the New Orleans Police Department. Deputy Anthony collected the defendant’s clothes and searched them for any contraband or weapons. During his search, Deputy Anthony discovered a small bag containing a white powdery substance in the coin pocket on the right side of the defendant’s blue jeans. Deputy Anthony informed the Officer of his discovery and turned the evidence over to him.

Jefferson Parish Sheriffs Deputy Mark Jovanich testified that on September 25, 2007, he was employed as a police officer with the New Orleans Police Department. He stated that he and his partner, Lakeith Jernigan, took the defendant into custody and took him to Central Lockup. The deputy related that narcotics were discovered in Mr. Ramos’ pants by the receiving deputy at Central Lockup. Deputy Jova-nich stated that he had searched the defendant himself but|2must have overlooked the contents of the coin pocket. Deputy Jovanich conducted a field test of the white substance, which was ultimately positive for cocaine. Deputy Jovanich then transported the evidence to Central Property and Evidence at the New Orleans Police Department.

Officer Lakeith Jernigan testified consistently with his partner. He stated that he spoke with a man named Marco Pedia before placing the defendant into custody. Pedia advised him that he and Ramos had gotten into a fight after Ramos accused Pedia of wearing Ramos’s clothes.

Paul Ramos testified in his own defense, relating that at the time of his arrest, he and Marco Pedia shared an apartment with eight or nine other individuals. He testified that after he came home from work he took a shower, leaving his clothes unattended. While he was showering, Pe-dia advised him that he was going out to get some food. After showering, Ramos got dressed and went to the store, and while making a purchase, noticed that twenty dollars had been removed from his wallet. Ramos further testified that he returned home and found Pedia in the bathroom with cocaine, at which point he accused Pedia of stealing his money, took the cocaine from Pedia’s hand and some cocaine that Pedia had left on the table.

Ramos stated that Pedia subsequently left the apartment angry, and that he put the drugs on a table in the living room. Ramos testified that he left the apartment some time later with the cocaine, intending to return the cocaine to Pedia. According to Ramos, Pedia was standing on the staircase to the second floor when Ramos approached him with the drugs, but Pedia kicked him in the leg [ .-¡and he fell down the stairs. The police arrived shortly thereafter, at which point Ramos testified that, upon seeing the police, he concealed the cocaine that he had in his hand into the pocket of his pants.

The State filed a bill of information charging the defendant, Raul Ramos with aggravated battery and possession of cocaine. Ramos pled not guilty at arraignment. Defense motions were heard on January 31, 2008, at which time the court denied the motion to suppress evidence, found probable cause on the charge of possession of cocaine, but found no probable cause as to the charge of aggravated battery.

On February 26, 2008, the state elected to sever the charges and to proceed as to the charge of possession of cocaine only. After a trial, the jury found the defendant guilty as charged.

On April 1, 2008, the trial court sentenced the defendant to two years, suspended the sentence, and placed the defendant on two years active probation. The trial court granted the defendant’s motion for appeal. On May 2, 2008, the State withdrew the previously filed multiple bill.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the evidence was insufficient to support his conviction. Specifically, defendant contends that the State failed to prove either that he knowingly possessed the cocaine or that he exercised dominion of control over the substance beyond a reasonable doubt.

|4The standard of review for the sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the State proved the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To support a conviction for possession of cocaine, the State must prove that the defendant was in possession of the contraband and that he knowingly possessed it. La. R.S. 40:966. The State need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support the conviction. See State v. Trahan, 425 So.2d 1222, 1226 (La.1983). A person not in physical possession of narcotics may have constructive possession when the drugs are under that person’s dominion and control. State v. Jackson, 557 So.2d 1034 (La.App. 4 Cir.1990).

On appeal, Defendant argues he had no knowledge of the cocaine that Pedia left in the pocket, and that all the occupants of the apartment had access to defendant’s clothing and money. Defendant further argues that, as evidence that he had no knowledge of the drugs, he did not attempt to hide or discard the cocaine and thus had no guilty knowledge.

The defendant admitted, however, to knowing possession of the cocaine at trial when he testified that he took the cocaine from Pedia when he confronted Pedia in the bathroom about the money and took the cocaine from Pedia’s hand and cocaine from the table. Likewise, defendant did not contend that he was unaware that the cocaine was in his pants. Furthermore, defendant admitted attempting to conceal the drugs upon seeing the police arrive. Additionally, the fact that the drugs were recovered in the defendant’s pants establishes his dominion | Rand control as he was in actual physical control of the drugs. Accordingly, this assignment of error lacks merit.

CONCLUSION

We find that the State established beyond a reasonable doubt that defendant knowingly and intentionally possessed cocaine. The conviction and sentence are hereby affirmed.

AFFIRMED.

      . The parties stipulated that if Criminalist Phuong Hoang were called to testify, he would testily that the substance recovered from Mr. Ramos tested positive for cocaine.

      . At trial, Ramos denied that it would have been possible for anyone else in the apartment to have worn his pants.


author: MICHAEL E. KIRBY, Judge.

text:
    Jo Ann CHARLES, Kedrick Jackson v. Tyrone ROBINSON, City of New Orleans Police Department.
    No. 2008-CA-0036.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2009.
    Elizabeth M. Gaudin, Hilary G. Gaudin, Gaudin & Gaudin, Gretna, LA, for Plaintiff/Appellant Jo Ann Charles.
    Detrich D. Hebert, Assistant City Attorney, Charlene C. Larche, Deputy City Attorney, Albert A. Thibodeaux, Chief Deputy City Attorney, Penya Moses-Fields, City Attorney, New Orleans, LA, for Defendants/Appellees Tyrone Robinson and The City of New Orleans.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

| ,Ms. Jo Ann Charles appeals the trial court judgment in her favor and against defendants, Tyrone Robinson and the City of New Orleans, in the amount of $38,300.00 plus interest and court costs. Ms. Charles’ appeal is based on her argument that the damages awarded to her are inadequate.

On October 8, 2004, Jo Ann Charles and Kedrick Jackson filed a petition for damages against defendants, Tyrone Robinson and the City of New Orleans Police Department, for injuries allegedly suffered in a vehicular collision on October 10, 2003. According to the petition, Jo Ann Charles was driving in a southerly direction on Woodland Drive in New Orleans near its intersection with Dover Place, when a vehicle driven by Tyrone Robinson, a police officer in the course and scope of his employment, turned left in front of Ms. Charles’ vehicle causing a collision. Mr. Kedrick was a passenger in Ms. Charles’ vehicle. Mr. Kedrick’s claim against the defendants was settled before trial.

Following trial of the claims of Ms. Charles against defendants, the trial court rendered judgment in favor of Ms. Charles and against the defendants, and 12awarded Ms. Charles $30,000.00 in general damages and $8,300.00 in medical expenses. The court also awarded her court costs and legal interest from date of judicial demand until paid. In its judgment, the trial court limited Ms. Charles’ awards for general damages and medical expenses to those incurred through August 17, 2004.

Ms. Charles now appeals the trial court judgment, arguing that the damages awarded are inadequate. Liability is not at issue in this appeal.

On the issue of damages, the following testimony was presented at trial. Ms. Charles described how she felt neck and back pain immediately following the accident, and stated that she had not suffered injuries to those areas of her body prior to the accident. She testified as to the medical treatment she received for her injuries. Ms. Charles also testified as to treatment she received beginning in September 2005 in Lafayette, Louisiana, where she relocated as a result of Hurricane Katrina. She stated that the treatment she has received in Lafayette is for back injuries and anxiety. She admitted that her anxiety problems are unrelated to the October 2003 accident. She related her continuing back problems to the car accident. She denied telling the emergency room physician at West Jefferson Medical Center that she hurt her back bending a couple of days prior to that visit in April 2004. She testified that she has had chronic back pain since the October 2003 accident.

The medical records show that Ms. Charles was taken to West Jefferson Medical Center emergency room after the accident. On October 13, 2003, she | -¡sought treatment from Dr. Norman Ott, an internist. Dr. Ott’s report shows that he evaluated Ms. Charles and made recommendations for her care. She followed Dr. Ott’s recommendations of therapeutic exercise, moist heat and cold packs for a few weeks, but never returned for a follow-up visit as scheduled. Ms. Charles also sought treatment from Dr. Sangeeta Parulekar within a month of the accident. He prescribed medication for Ms. Charles’s complaints of pain in her neck, left hip and low back. Dr. Parulekar continued to treat Ms. Charles until she asked to be discharged from his care on January 26, 2004. He discharged her in satisfactory condition, and gave her the option of returning for further treatment if she had recurring problems.

Ms. Charles went to the West Jefferson Medical Center emergency room on April 5, 2004 complaining of low back pain. The records from that visit show that Ms. Charles reported injuring her back from an incident of bending over two to five days prior to her visit. She sought treatment on April 7, 2004 from Dr. F. Allen Johnston, a general practitioner and orthopedist, whose deposition was offered into evidence. At her initial visit, Ms. Charles complained of pain from her neck to her low back throughout her spine as a result of the October 10, 2003 motor vehicle accident. Dr. Johnston prescribed medication and physical therapy, and suggested that Ms. Charles use a TENS unit. He also ordered an MRI study of her neck and back, which revealed cervical spondylosis at C5-6 and C6-7 with foraminal stenosis at C5-6. He stated that these conditions probably predated the |4accident, but Ms. Charles was asymptomatic prior to the accident, according to her history.

His opinion was that the accident caused the stenosis to become symptomatic. In Ms. Charles’s lower back, Dr. Johnston found that she had an L5-S1 annular tear with an associated disc herniation. He found that without any previous complaints of low back pain or a previous MRI, it is more probable than not that the tear and associated disc herniation are related to the accident.

Dr. Johnston stated that an annular tear can have other causes besides trauma from a vehicular accident. He said that such a tear can also be caused by bending over and picking up a heavy suitcase. He stated that as a result of the L5-S1 disc herniation, Ms. Charles suffered a 10 percent whole person permanent physical impairment. Dr. Johnston referred Ms. Charles to Dr. Bernard A. Landry, a radiologist, for lumbar epidural steroid injections for her back pain. She received these treatments in June 2004. Dr. Johnston released Ms. Charles from treatment on August 17, 2004. Dr. Johnston related his treatment and the injuries he found in his treatment of Ms. Charles to the accident of October 10, 2003.

At the conclusion of testimony, the trial court gave oral reasons for judgment. In those reasons, the trial court noted that Dr. Johnston’s treatment of Ms. Charles did not begin until April 2004, six months after the accident. At that time, Ms. Charles complained of neck and back pain with radiation. She had sought treatment at the West Jefferson Medical Center emergency room two days earlier with these same complaints. Dr. Johnston sent Ms. Charles for an MRI, |swhich showed an annular, or ring-shaped, tear. The trial court noted that the parties dispute the cause of the annular tear. Although it is undisputed that tears can occur from trauma, the court noted that Dr. Johnston said the trauma does not have to be from an accident, but can be caused by bending over and picking up a heavy object.

The court stated that the record shows that Ms. Charles complained at her April 2004 emergency room visit that bending at home caused her back problems to flare up. Prior to that event, Ms. Charles had requested discharge from her prior treating physician as of January 26, 2004. As of that date, her prior treating physician discharged Ms. Charles with the option of returning should there be any recurring problems. The court noted that there is no indication of any further problems until Ms. Charles went to West Jefferson Medical Center emergency room in April 2004 and reported that she was bending a few days before her emergency room visit and suffered a recurrence of her back problems as a result thereof.

After treatment and diagnostic testing by Dr. Johnston following the April 2004 emergency room visit, he discharged her from his care on August 17, 2004, with instructions for her to continue exercises at home and to return as needed due to the disc herniation in the lumbar spine. Dr. Johnston’s assessment of Ms. Charles is that she has a ten percent permanent impairment of the whole person. However, the court noted that at the time of Dr. Johnston’s discharge of Ms. Charles on August 17, 2004, she had only mild tenderness in the cervical area, a |(¾⅛11 active range of motion, non-tender lower back area, and her lower extremity strength and her neurovascular status was intact. The trial court found that Ms. Charles’ injuries were resolved as of that date.

The trial court stated that she did not find Ms. Charles to be a credible witness. The court found that as a result of the accident, Ms. Charles sustained back and neck injuries for which she was treated until she requested discharge on January 26, 2004. She reinjured her back in April 2004, but the court found the City is still responsible for the subsequent treatment by Dr. Johnston to the extent that those treatments were related by Dr. Johnston to the accident. The trial court found that all of Ms. Charles’ complaints relative to the accident were resolved as of August 17, 2004. The court also found Dr. Landry’s treatment of Ms. Charles to be related to the accident, but found other medical treatment received subsequent to August 17, 2004 was unrelated to the accident. The court noted that most of the treatment received by Ms. Charles subsequent to August 17, 2004 was for problems other than back problems, such as allergies and anxiety.

The trial court found that as a result of the accident, Ms. Charles sustained a ten month soft tissue injury that is somewhat chronic in nature. The court found defendant liable to Ms. Charles for $30,000.00 in general damages plus medical expenses for the treatment found to be related to the accident.

On appeal, Ms. Charles argues that an award of $30,000.00 in general damages for the injuries suffered by her as a result of the accident is inadequate. 17She also argues that the trial court erred in limiting damages to those incurred only through August 17, 2004.

Our review of the record establishes that the trial court’s conclusions as to the extent of Ms. Charles’ injuries incurred as a result of the October 2003 accident are reasonable. “The discretion vested in the trier of fact in the awarding of general damages is great, and even vast.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Considering the injuries suffered by Ms. Charles that have been related to the 2003 accident, and the medical treatment received as a result thereof, we do not find that the award of $30,000.00 in general damages to Ms. Charles is inadequate. Ms. Charles’s arguments are without merit.

For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.


author: GUIDRY, J.

text:
    Armond ADAM, v. The STATE of Louisiana Through The DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. Peter W. Adam et al., v. The State Of Louisiana Through The Department Of Transportation And Development.
    Nos. 2008 CA 1134, 2008 CA 1135.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Vincent J. Glorioso, New Orleans, LA, for Plaintiff/Appellee/2nd Appellant Ar-mond Adam.
    Christopher P. Ieyoub, H. David Vaughan, Lake Charles LA, for Plaintiffs/Appellees/2nd Appellants Peter Adam et al.
    James D. “Buddy” Caldwell, Attorney General, Patrick J. Berrigan, Assistant Attorney General, D. Rex English, Assistant Attorney General, Slidell, LA, for Defendant/Appellant/2nd Appellee Louisiana Department of Transportation and Development.
    Before: KUHN, GUIDRY, and GAIDRY, JJ.
   GUIDRY, J.

| sIn this appeal, the State of Louisiana, through the Department of Transportation and Development (the DOTD) seeks review of the trial court’s decision to grant the plaintiffs’ motion for a directed verdict. The plaintiffs answered the appeal to seek review of the jury’s allocation of 50 percent fault to the decedent driver in the single-car accident sued upon.

FACTS AND PROCEDURAL HISTORY

This matter stems from a fatal, single-car accident that occurred in Pearl River, Louisiana, on November 26, 2001. While on Louisiana Highway 41, heading south towards Louisiana Highway 11, Althea Adam drove her 1992 Geo Prism partially onto the right shoulder. In an attempt to regain the roadway, Ms. Adam steered left, but overcorrected her steering, which caused her vehicle to skid sideways across the two-lane highway and overturn several times on the shoulder along the northbound lane of the roadway. Ms. Adam did not survive the accident. Details of the accident scene revealed that where Ms. Adam’s vehicle initially left the roadway, there was approximately a four to six inch difference between the height of the roadway and the height of the contiguous shoulder, creating what is commonly referred to as a “drop off’ or “rut.”

Two separate wrongful death actions were filed against the DOTD by the legal heirs of Ms. Adam (collectively “plaintiffs”) on December 27, 2001, and November 14, 2002. A jury trial was held in this matter on September 17-19, 2007. Following the presentation of evidence, the plaintiffs moved for a directed verdict on the issue of the liability of the DOTD, which was granted by the trial court. As a result of the trial court granting the motion for directed verdict, the jury was left to decide: (1) whether any fault should be attributed to Ms. Adam; (2) if so, apportionment of fault between the DOTD and Ms. Adam; and (3) quantification of the damage claims asserted. In response to interrogatories 14propounded to it, the jury found Ms. Adam to bear some fault in causing the November 26, 2001 accident and allocated fault equally to Ms. Adam and the DOTD. The jury assessed a total damage award of $816,201.54, inclusive of special damages for funeral and medical expenses. A written judgment in conformity with the jury’s verdict was signed on October 16, 2007. Thereafter, the plaintiffs filed a motion for judgment notwithstanding the verdict to contest the percentage of fault allocated to Ms. Adam by the jury. The trial court denied the motion.

ASSIGNMENTS OF ERROR

The DOTD suspensively appealed the October 16, 2007 judgment, alleging that the trial court erred in granting plaintiffs’ motion for directed verdict at the close of evidence. In answer to the appeal, plaintiffs allege that the following errors were committed in the proceedings before the trial court:

1. The Trial Court erroneously responded to questions posed by the jury on seatbelt evidence by failing to notify counsel of those questions and by failing to respond with the correct legal instruction consistent with La. R.S. 32:295.1(e). The Trial Court’s erroneous instructions to the jury questions caused the jury to assess 50 percent fault to Althea Adam, and the Trial Court erred by failing to correct that erroneous result on the Motion for Judgment Notwithstanding the Verdict.
2. The jury erred in allocating 50 percent fault to Althea Adam. All fault should have been assigned to DOTD.
3. The Trial Court erroneously signed an incomplete Judgment submitted by the DOTD pertaining to the hearing of December 6, 2007, which erroneous Judgment omitted all reference to the fact that the Trial court had granted plaintiffs’ Motion to Tax Expert Costs.

DISCUSSION

LIABILITY OF THE DOTD

Generally, in order to recover damages against the DOTD, a public entity, a plaintiff must prove: (1) DOTD had custody of the thing that caused plaintiffs damages; (2) the thing was defective because it had a condition that created an ^unreasonable risk of harm; (3) DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time; and (4) the defect was a cause-in-fact of plaintiffs injuries. La. R.S. 9:2800; La. C.C. art. 2317; Netecke v. State, DOTD, 98-1182, p. 7 (La.10/19/99), 747 So.2d 489, 494.

The DOTD does not dispute that it had custody of Highway 41 and the abutting shoulder, that a defective condition existed along the roadway’s shoulder, or that it had notice of the defective condition. Instead, the DOTD contends that the trial court erred in granting the plaintiffs’ motion for a directed verdict because the evidence presented at trial was such that the jury may have concluded Ms. Adam’s accident was not caused by the drop off along the roadway. Essentially, the DOTD argues that the evidence was insufficient to prove that the drop off between the height of the roadway and the adjoining shoulder caused Ms. Adam to over-correct when she steered her vehicle back onto the roadway. Thus, the DOTD alleges that the negligent actions of Ms. Adam were the sole cause of the accident. Additionally, the DOTD asserts that the defect of the drop off or rut abutting the roadway was so open and obvious that it should not be held liable.

A motion for directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the movant’s opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. Rabalais v. St. Tammany Parish School Board, 06-0045, p. 6 (La.App. 1st Cir.11/3/06), 950 So.2d 765, 769, writ denied, 06-2821 (La.1/26/07), 948 So.2d 177. However, if there is substantial evidence opposed to the motion; i.e., evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury. Pratt v. Himel Marine, Inc., 01 — 1832, pp. 17-18 (La.App. 1st Cir.6/21/02), 823 So.2d 394, 406, writs denied, 02-2128, 02-2025 (La.11/1/02), 828 So.2d 571, 572.

On appeal, the standard of review for legal sufficiency of the evidence challenges, such as those presented by directed verdicts, is de novo. State, Department of Transportation and Development v. Restructure Partners, L.L.C., 07-1745, p. 11 (La.App. 1st Cir.3/26/08), 985 So.2d 212, 223, writ denied, 08-1269 (La.9/19/08), 992 So.2d 937. A directed verdict should be sustained on appeal where the reviewing court would find a jury verdict in favor of the party opposing the motion to be manifestly erroneous had the trial judge allowed the case to go to the jury. Roberson v. August, 01-1055, p. 5 (La.App. 4th Cir.5/29/02), 820 So.2d 620, 624.

The evidence in this case reveals that a drop off or deep rut existed in the area of the shoulder where the accident occurred. While there was no evidence of any defect in the roadway to cause Ms. Adam to leave her travel lane and drive onto the shoulder, the evidence does show that once on the shoulder, in her attempt to drive back onto the roadway, Ms. Adam did encounter the significant drop off along the roadway.

The DOTD has a duty to maintain public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence, which duty extends to the shoulders of highways as well. Cormier v. Comeaux, 98-2378, p. 6 (La.7/7/99), 748 So.2d 1123, 1127. This duty further encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder, and thus 17this duty extends to drivers who are slightly exceeding the speed limit or momentarily inattentive. Cormier, 98-2378 at 6, 748 So.2d at 1127.

Moreover, while the DOTD’s duty does not extend to a motorist who has knowledge of a highway defect and a reasonable opportunity to avoid the harm, Hardenstein v. Cook Construction, Inc., 96-0829, p. 9 (La.App. 1st Cir.2/14/97), 691 So.2d 177, 184, writ denied, 97-0686 (La.4/25/97), 692 So.2d 1093, there was no proof presented at trial that Ms. Adam was aware of the drop off. Jane L. Trióla, a local attorney who reported the existence of the drop off along the southbound lane of Highway 41 to the DOTD a week before Ms. Adam’s accident, testified that she first noticed the drop off a few weeks prior to the accident and stated she was motivated to report the defect because her teenage daughter had just acquired her drivers’ license and traveled that stretch of roadway.

One of Ms. Adam’s children who regularly traveled on Highway 41 as a profés-sional truck driver testified that despite the depth and length of the drop off, he “would have never seen it” because “when you are driving, you are not looking at the holes on the side of the highway unless you back off the highway and drop in to it, and you know it’s there.” Additionally, James Locke, a witness presented by the plaintiffs and accepted by the trial court as an expert in accident reconstruction, stated that he did not think the drop off would be obvious to most drivers traveling on Highway 41. He further testified that according to the American Association of State Highway and Transportation Officials in 1996, the drop off “creates an unreasonable hazard that most people can’t comply with” if the maximum vertical difference is greater than two inches.

While the evidence does show (as will be discussed more fully later in this opinion) that Ms. Adam’s reaction to the danger or risk presented by the drop off contributed to the accident, such does not require that the DOTD be absolved from all liability; rather, the evidence leans more to finding Ms. Adam comparatively at 18fault for the accident that occurred. Hence, we reject the arguments of DOTD in regard to this assignment of error.

IMPROPER COMMUNICATION WITH JURY

In their answer to the DOTD’s appeal, the plaintiffs correctly note that the trial court erred in failing to notify counsel of communications with the jury during deliberations and in erroneously responding to questions posed by the jury. As provided in La. C.C.P. art. 1796:

A. If the jury, after retiring for deliberation, desires to receive information on any point of law, they shall be conducted to the courtroom.
B. After giving notice to the parties, the court may give the appropriate instructions.
C. The court, after giving notice to the parties, may recall the jury after they have retired:
(1) To correct or withdraw an erroneous instruction.
(2) To clarify an ambiguous instruction.
(3) To inform the jury on a point of law which should have been covered in the original instructions.
(4) To give such further instructions as may be appropriate.

A judge who communicates with a jury without notifying the parties and recalling them to the courtroom, so that the interchange may be entered into the record, does so at his peril. All such communications will be subject to close scrutiny by an appellate court. Carpenter v. Hannan, 01-0467, p. 6 (La.App. 1st Cir.3/28/02), 818 So.2d 226, 229-230, writ denied, 02-1707 (La.10/25/02), 827 So.2d 1153.

The following inquiries by the jury and responses by the trial court were made during deliberations without notice to the parties:

Juror: “Coroner report says not wearing seatbelt but shoulder strap only. No one discussed it. How do we handle it[?]”

| nTrial Court: “You must rely upon your common recollection of the evidence and your personal experience in life during your deliberations.”

Juror: “Can we assign fault to the plaintiff for failure to wear her complete seat-belt?”

Trial Court: “I can not comment on this.” The parties learned of these communications between the trial court and the jury after judgment was rendered.

In addition to improperly communicating with the jury during deliberations, the trial court failed to properly instruct the jury regarding the questions posed. Subsection A(l) of La. R.S. 32:295.1 provides that a driver of a passenger vehicle is required to “have a safety belt properly fastened about his or her body at all times when the vehicle is in forward motion,” but Subsection E stipulates that “[i]n any action to recover damages arising out of the ... operation of a motor vehicle, failure to wear a safety belt in violation of this Section shall not be considered evidence of comparative negligence. Failure to wear a safety belt in violation of this Section shall not be admitted to mitigate damages.”

Thus, the trial court clearly erred in: (1) failing to notify the parties of the jury’s questions and its instruction; and (2) failing to instruct the jury that it could give no consideration to the fact that Ms. Adam was not wearing a complete seatbelt at the time of the accident in assessing fault.

Based on these legal errors, this court must determine, de novo, the issue of Ms. Adam’s comparative fault, if any. See Rideau v. State Farm Mutual Automobile Insurance Company, 06-0894, p. 12 (La. App. 1st Cir.8/29/07), 970 So.2d 564, 576, writ denied, 07-2228 (La.1/11/08), 972 So.2d 1168; Lawson v. Straus, 98-2096, p. 6 (La.App. 4th Cir.12/8/99), 750 So.2d 234, 239, writ denied, 00-0120 (La.3/17/00), 756 So.2d 1144.

Jjj-LIABILITY OF MS. ADAM

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault, 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. Clement v. Frey, 95-1119, p. 8 (La.1/16/96), 666 So.2d 607, 611.

Mr. Locke, the plaintiffs’ accident reconstruction expert, testified regarding the extent of the drop off based on photographs of the accident scene taken by police officers with the Pearl River Police Department, witness testimony, and his inspection of the tires on Ms. Adam’s vehicle. Based on this evidence, Mr. Locke concluded that the drop off was a minimum of four inches in height. The depth of the drop off or rut, which was estimated to be about six feet long, was not uniform, so at some points the height of the drop off was less and at other points greater than the minimum height of four inches that Mr. Locke determined. Mr. Locke explained that the scrubbing condition on the tire of Ms. Adam’s vehicle indicated that her vehicle did not have enough vertical height to climb out of the rut when she turned her steering wheel to drive back onto the roadway, but while traveling in the rut, she reached a point where the drop off depth decreased enough for Ms. Adam’s vehicle to “grab hold of the edge of that pavement and bring the car back on” the roadway.

At the point in time when Ms. Adam was able to drive the car back onto the roadway, the speed of her vehicle was 45 miles per hour, and combined with turning of her wheel to the left, Mr. Locke opined that “[t]he car is going to take off diagonally across the roadway,” which is what occurred in this case.

InWhile Mr. Locke further opined that Ms. Adam was “attentive to what was going on” after she encountered the drop off based on her perception response time, he still acknowledged that “she inadvertently allowed the vehicle, right side tires of the vehicle [to] come off ... the roadway.” He further characterized his supposition that “she is probably off the gas as she is trying to get back on” as the action of “[a]ny reasonable prudent person.” As Mr. Locke explained, “in real world collisions[,] ... it looks like what any reasonable prudent driver would do. That is to steer gradually. Not to jerk the steering [wheel]. And that’s what they teach us in driver’s training is to steer gradually and reduce our speed.” Mr. Locke testified that his research revealed that most states instructed drivers to slow down and “very, very slowly start trying to steer back onto the road.”

On cross examination, Mr. Locke admitted that he estimated the speed at which Ms. Adam was traveling at the time the accident occurred based on the markings left on the roadway, since he did not know exactly where Ms. Adam’s vehicle first left the roadway into the rut. He further admitted that if Ms. Adam had traveled in the rut until her vehicle stopped, the accident would not have occurred. When asked to explain the proper course of action to take when driving in a rut, Mr. Locke stated:

Well, what you should do is you should lift off the accelerator, slowly decrease your speed. And if you are in a rut, and you know for a fact that a steering input is not going to work, don’t keep putting a steering input in if it doesn’t go. Just slow your speed down. And eventually, either come to a stop or wait until you get slow enough where you can safely remount the roadway. That’s what you should do.”

A motorist who was traveling northbound on Highway 41 at the time of the accident testified that he did not see any animal dash in front of Ms. Adam’s vehicle that would cause her to swerve. The witness said he noticed the rut along the southbound lane after he had given his statement to the police and was preparing to leave the scene.

112Ms. Adam’s son, Sidney Adam, testified that his mother obtained her driver’s license in 1984, shortly after his father die d, and that since becoming a licensed driver, Ms. Adam had not been involved in any accidents nor received any traffic citations. All of Ms. Adam’s relatives who testified— children and grandchildren — stated that she was healthy and was not taking any medication at the time of her death. There was no evidence presented to indicate that Ms. Adam had any reason to rush or proceed in a hurry at the time of the accident. Shortly before the accident occurred, Ms. Adam spoke to her daughter and informed her that she was preparing to leave to pick up a young boy she cared for in the afternoons.

Based on this evidence, we believe the record supports a finding that some fault in causing the accident is attributable to Ms. Adam. A driver of a vehicle who fails to respond prudently once the vehicle has left the roadway is proportionately at fault, Lee v. State, 98-2559, p. 4 (La.App. 1st Cir.12/28/99), 751 So.2d 321, 324. While we believe the DOTD was in the superior position of addressing the risk presented by the drop off based on its knowledge of the defect from the citizen complaint and its bi-weekly inspections of the area where the accident occurred, we nonetheless find that the evidence shows that Ms. Adam contributed to the harm she suffered and therefore should not be absolved of all fault. Accordingly, we find that the highest percentage of fault that could be attributed to Ms. Adam was 25 percent. The judgment will be amended to reflect this adjustment in the percentage of fault. See Harris v. State, Department of Transportation and Development, 07-1566 (La.App. 1st Cir.11/10/08), 997 So.2d 849; Everhardt v. Louisiana Department of Transportation and Development, 07-0981 (La.App. 4th Cir.2/20/08), 978 So.2d 1036; Hussey v. Russell, 04-2377 (La.App. 1st 3/29/06), 934 So.2d 766, writ denied, 06-0962 (La.6/14/06), 929 So.2d 1269; Bozeman v. State, 34,430 (La. App.2d 4/4/01), 787 So.2d 357, writ denied, 01-1341 (La.6/29/01), 794 So.2d 813; Lee v. State, 98-2559, 751 So.2d 321.

We further find merit in the plaintiffs’ final assignment of error. Although the trial court signed two judgments pertaining to its ruling on the plaintiffs’ motion for judgment notwithstanding the verdict, decreeing in both judgments that the motion was denied, the second judgment further adds the trial court’s ruling on the plaintiffs’ motion to tax costs, which would constitute a substantive amendment of the first signed judgment.

When a trial court substantively amends a judgment without recourse to the proper procedure, the amended judgment is an absolute nullity. Louisiana jurisprudence further provides that when a trial court signs a judgment and then signs another, the second judgment is an absolute nullity and without legal effect. Mack v. Wiley, 07-2344, p. (La.App. 1st Cir.5/2/08), 991 So.2d 479, 486.

As the proper recourse for an error of substance within a judgment is a timely application for new trial, or in this case, a timely appeal, Bourgeois v. Kost, 02-2785, p. 5 (La.5/20/03), 846 So.2d 692, 695, we will amend the first judgment signed by the trial court to reflect the granting of the motion to tax costs in favor of the plaintiffs.

CONCLUSION

For the foregoing reasons, we amend the October 16, 2007 judgment of the trial court to allocate 75 percent fault to the DOTD and 25 percent fault to Ms. Adam for causing the November 26, 2001 accident. Accordingly, the amounts awarded to the plaintiffs will be increased to the following amounts to reflect the change in the percentages of fault assessed to the DOTD and Ms. Adam: the awards to Peter Adam, Camille Adam Bischoff, Sidney Adam, Patricia Adam Ramil, Robert Adam, and Armond Adam are increased to $68,189.06; the awards to Tammy Manint, Darek Reattte (on behalf of Gabrielle Reatte), Randy Adam, and Rhonda Adam Andrews are increased to $34,094.53; and the awards to James 114Spano, Jr., Sherry Gabriel, Shannon Perry Adam Bischoff, and Courtney Martinez Crawford are increased to $17,047.27. In all other respects, the October 16, 2007 judgment is affirmed.

We also amend the December 20, 2007 judgment appealed by the plaintiffs to grant the plaintiffs’ motion to tax costs in the amount of $19,509.02 against the DOTD. All costs of this appeal, in the amount of $2,096.97, are assessed to the State of Louisiana, through the Department of Transportation and Development.

JUDGMENTS AMENDED, AND AS AMENDED, AFFIRMED.

      . "Roadway” is statutorily defined as "that portion of a highway improved, designed, or ordinarily used for vehicular traffic, exclusive of berm or shoulder.” La. R.S. 32:1(59) and 48:1(17) (emphasis added). A "highway” is generally defined as "the entire width between the boundary lines of every way or place of whatever nature publicly maintained and open to the use of the public for the purpose of vehicular travel, including bridges, causeways, tunnels and ferries; synonymous with the word ‘street.’” La. R.S. 32:1(25). See also La. R.S. 48:1(9).

      . "Shoulder” is statutorily defined as "the portion of the highway contiguous with the roadway for accommodation for stopped vehi-eles, for emergency use and for lateral support of base and surface." La. R.S. 32:1(65) and 48:1(20).

      . The record reveals that before 7 a.m. the next morning, the DOTD had repaired the area of the drop off along Louisiana Highway 41 where the accident occurred.


text:
    Herbert Rives ALEXANDER, Jr. v. Maria Carmen PALAZZO.
    No. 2008 CA 1541.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Stephen S. Stipelcovich, Michael J. Sa-mante, Houma, LA, for Plaintiff-Appellee Herbert Rives Alexander Jr.
    John Y. Kennedy, Metairie, LA, for Defendant-Appellant Maria Carmen Palazzo.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GUIDRY, J.

|2A former wife appeals a judgment holding her liable to repay sums of money provided by her ex-spouse during the course of them marriage.

FACTUAL AND PROCEDURAL HISTORY

The parties to this action, Herbert Rives Alexander, Jr. and Maria Carmen Palazzo, were married in 1997. Prior to the wedding, the parties executed a marriage contract in which they agreed to establish a separate property regime. During the course of the marriage, Alexander disbursed the total sum of $190,000 in four different transactions as follows:

Check number 10522 for $100,000 payable to Palazcoe, LLC dated June 29, 1999.
A transfer on March 23, 2000 of $50,000 to an investment account for Palazcoe managed by Palazzo.
Check number 10797 for $20,000 payable to Carmen Palazzo dated November 15, 2000, and endorsed for deposit in Pa-lazcoe’s bank account.
Check number 09710 for $20,000 payable to H.R. Alexander, Jr. dated August 24, 2001,and endorsed for deposit in Pa-lazcoe’s bank account.

In 2003, the parties separated and signed an agreement wherein the couple stipulated to the return of certain movable property belonging to each party respectively, to a visitation and custody schedule with their black Labrador, Princess Girl, and to payment of monies owed to Alexander. No monies were paid to Alexander and on November 17, 2005, Alexander filed a petition against Palazzo to recover the amount of $190,000 plus interest.

Palazzo responded to the petition by filing exceptions urging the objections of improper venue and prescription and generally denied liability to repay the money requested in Alexander’s petition. The trial court deferred ruling on the exceptions until the trial on the merits. Prior to trial, Alexander withdrew his demand for interest and simply maintained his action to recover the principal amounts paid. Following a trial, at which both parties testified, the trial court overruled the exceptions filed by Palazzo and rendered judgment in favor of |3Alexander, awarding him the $190,000 as prayed for by Alexander. Palazzo appealed.

ASSIGNMENTS OF ERROR

Palazzo contends that the trial court erred in rendering the judgment appealed in the following respects:

1. The Honorable Trial Court erred in its determination that the cause of action was not founded on monies tent.
2. The Honorable Trial Court erred in denying the Exception of Prescription.
3. The Honorable Trial Court erred in denying the Exception of Improper Venue.
4. The Honorable Trial Court erred in casting Defendant in Judgment for sums paid to a third party.

DISCUSSION

In order to resolve the issues raised on appeal, we must determine the nature and effect of the agreement between the parties. The proper interpretation of a contract is a question of law subject to de novo review on appeal. Montz v. Theard, 01-0768, p. 5 (La.App. 1 Cir. 2/27/02), 818 So.2d 181, 185. When considering legal issues, the reviewing court accords no special weight to the trial court, but conducts a de novo review of questions of law and renders judgment on the record. Montz, 01-0768 at 5, 818 So.2d at 185.

At trial, both Alexander and Palaz-zo testified that Alexander advanced the money in dispute to contribute to investment property and for stock purchases. When asked to confirm that none of the money was used for her own personal use, Palazzo replied “it was all either in investment property or investment in stocks. None of it was for my personal use.” Pa-lazzo further explained that it was her understanding that Alexander was to be repaid the money invested in her property business when the real estate was sold. As for the $50,000 used for stock purchases, she said “he did not want to share the risk, so instead of calling it an investment at that point in time, he wanted the [monies] repaid to him.” The | ¿money for the stock purchases was distributed through an investment account owned by Alexander in which he directed the deposit of $50,000 into a Palazcoe account for Pa-lazzo’s use.

As to her understanding of the nature of the money provided by Alexander, Palazzo explained “well, if one doesn’t take the risk, it’s not an investment. I mean part of the problem is I think he wanted his cake and eat it, too. I mean if we made— if I made a profit on it he wanted to share in the profits, but he didn’t want to share in the risks. I mean that’s — it’s an animal that doesn’t exist. At least not that I’ve learned about.”

Alexander likewise testified that he had discussed getting involved in some real estate investments with Palazzo and so he provided $140,000 to invest in real estate Palazzo owned. As for the $50,000 disbursement, Alexander acknowledged that he invested the money with the intent that his financial liability would be limited to the $50,000 invested. Alexander testified that when he provided the funds, “[w]e had no specific terms as to how the final would be distributed or paid off or what have you. At the time, we were married, so we were — I was investing my money and— with her. And so there was no specific terms as to how the — in the final analysis how it would be paid.” Alexander first made a demand for the amounts paid in April 2003, after the parties separated.

In 2003, Alexander and Palazzo separated, and pursuant thereto, Palazzo typed up an agreement dated June 12, 2003, that was signed by both parties. In the agreement, the following statement is recited “Dr. Alexander is to be paid for the monies owed to him — specific amount to be determined, but in rounded figures about $130,000. (Confirmed by his accountant) minus the cost of the safe.” At trial, Pa-lazzo acknowledged typing and signing the agreement, stating “I can tell you why that document was typed up. It was typed up to get him off my back. And I wanted to have some stipulations in there about the things that were at his house that were mine, and most importantly, that document was typed up so I had [^access to Baby Princess Girl, our black lab.” The actual agreement was placed in evidence along with documents from Alexander’s accountant documenting the amount owed of $190,000. Based on this evidence, we find no error in the trial court’s determination that the transactions at issue constituted a contractual or personal obligation and were not simply money lent.

Palazzo’s signing of the June 12, 2003 agreement agreeing to pay the sums owed to Alexander created a binding obligation that was legally enforceable as a personal action, even for those sums ostensibly given to Palazcoe. See La. C.C. arts. 1823, 1855, and 1906. We accordingly find no merit in Palazzo’s assignment of error contending that the trial court erred in failing to find Alexander’s action to recover the money prescribed. The June 12, 2003 agreement created an obligation and Alexander’s suit was filed on November 21, 2005, with respect to that obligation. Furthermore, as a personal or contractual obligation, the June 12, 2003 agreement was subject to the ten-year prescriptive period found in La. C.C. art. 3499.

Finally, considering the conclusion reached herein that Alexander’s suit for recovery of the $190,000 can be premised on the fact that Palazzo signed the June 12, 2003 document, there is insufficient evidence in the record before us to determine where the parties signed the document to determine if venue in Terre-bonne Parish was proper. See La. C.C.P. arts. 42(1), 45(3) and 76.1. Further, we find that Palazzo waived her objection to venue in Terrebonne Parish when she failed to seek supervisory' review of the trial court’s ruling pursuant to La. C.C.P. art. 2201. See M & L Industries, L.L.C. v. Hailey, 05-940, p. 12 (La.App. 3d Cir.3/1/06), 923 So.2d 869, 877.

| fiWhile it is true that normally when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to her, in addition to the review of the final judgment, see Judson v. Davis, 04-1699, p. 8 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1112-1113, writ denied, 05-1998 (La.2/10/06), 924 So.2d 167, such review would be meaningless in this instance because we have no practical means of correcting the alleged erroneous denial of the declinatory exception raising the objection of improper venue on appeal after final judgment is rendered, if such was established. Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 n. 1 (La.1981). Further, as discussed in M & L Industries, L.L.C. (quoting Danny Weaver Logging, Inc. v. Norwel Equipment Company, 33,793 (La.App.2d Cir.8/23/00), 766 So.2d 701): “Any disadvantage that an incorrect ruling on venue may pose to the defendant does not impact the merits of the case, and therefore does not outweigh the costs of the subsequent employment of the resources of the judicial process in that venue.” M & L Industries, L.L.C, 05-940 at 11, 923 So.2d at 876. Thus, we reject Palazzo’s assignment of error pertaining to the trial court’s overruling of the declinatory exception objecting to venue as we find that she waived the objection by failing to seek supervisory review of the trial court’s ruling.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are cast to the appellant, Maria Carmen Palazzo.

AFFIRMED.

KUHN, J., concurs.

      . As a result of the 2005 amendment of La. C.C.P. art.2083, effective January 1, 2006, to provide that "[a]n interlocutory judgment is appealable only when expressly provided by law[,]” the denial of a declinatory exception raising the objection of improper venue is no longer an appealable interlocutory judgment on the grounds that the judgment could cause irreparable harm. West Cameron Port, Harbor and Terminal District v. Lake Charles Harbor and Terminal District, 06-496 (La.App.3d 5/31/06), 931 So.2d 1232.