author: DANIEL L. DYSART, Judge.

text:
    Edith SASSONE v. Jane DOE, Hospital Housekeeping Systems, Ltd. and Tenet Mid-City Medical, dba Lindy Boggs Medical Center.
    No. 2011-CA-1821.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.

      Brian G. Birdsall, The Birdsall Law Firm, Inc., New Orleans, LA, for Plain-tiffiAppellee.
    Jerald L. Album, Michael T. Wawrzycki, Reich, Album & Plunkett, L.L.C., Metair-ie, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   DANIEL L. DYSART, Judge.

| T Defendant-appellant, Hospital Housekeeping Systems, Ltd. (“HHS”), appeals from a trial court judgment in favor plaintiff-appellee, Edith Sassone. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In late December, 2004, Edith Sassone’s husband was hospitalized at Lindy Boggs Medical Center (“LBMC”) for treatment of pneumonia and bronchitis. Mrs. Sas-sone stayed with her husband at LBMC from the time that he was admitted until the time of the accident made subject of this lawsuit.

On the morning of December 28, 2004, as Mrs. Sassone proceeded towards a bedside table to answer a telephone, she slipped on a liquid substance and fell to the floor. As a result of her fall, Mrs. Sassone fractured her shoulder.

At the time of the accident, HHS provided janitorial services to LBMC. According to the trial testimony, an HHS employee, Shirelle Hymes, had mopped the floor of Mr. Sassone’s room at some time prior to, and evidently shortly before, Mrs. Sas-sone’s fall.

12Suit was originally filed against HHS and LBMC and was later amended to name LBMC’s proper entity, Tenet Mid-City Medical, d/b/a LBMC, and to add Ms. Hymes as a defendant. LMBC was voluntarily dismissed with prejudice on June 29, 2011.

A bench trial was held on May 23-24, 2011. By judgment dated September 7, 2011, the trial court ruled in Mrs. Sas-sone’s favor and awarded general damages of $60,000, which was reduced to $50,000 pursuant to a pre-trial stipulation of the parties. The trial court’s Reasons for Judgment make the following findings:

Defendant asserts that when a housekeeper enters a hospital room and mops the floor, this creates an open and obvious danger, which they do not owe a duty to protect or warn against. This Court disagrees. Although Mr. Sassone testified that he saw the housekeeper enter the room and begin mopping the floor, Mrs. Sassone was clear in her testimony, that she did not see her. Further, despite protocol which requires the housekeeper to announce her presence and place a warning sign, both Mr. and Mrs. Sassone testified that she did neither, and this testimony was uncon-tradicted [sic]. The Court finds that, considering the location and circumstances surrounding this incident, defendant had a duty to protect persons in Mrs. Sassone’s position from just these types of incidents, and breached that duty. Further, this Court does not find any fault on the part of Mrs. Sassone.

HHS has timely appealed this judgment.

STANDARD OF REVIEW

HHS urges this court to review this record on a de novo basis. While appellate courts review both fact and law, it is well-settled that the applicable [.^standard of review for a factual finding is the manifestly erroneous or clearly wrong standard. S.J. v. Lafayette Parish School Bd., 2009-2195, p. 13 (La.7/6/10), 41 So.3d 1119. 1128. It is equally well-settled that an appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. State Department of Public Safety & Corrections, 01-2123, p. 14 (La.9/4/02), 825 So.2d 1134, 1144, citing Stobart v. State through Dept, of Transp. and Dev., 617 So.2d 880 (La.1993). As the S.J. court stated, “[i]n applying the manifestly erroneous — clearly wrong standard to the findings ... appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.” Id., p. 13, 41 So.3d at 1128, quoting Rosell v. ESCO, 549 So.2d at 844.

Thus, in order to reverse a fact-finder’s determination under this standard of review, “an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong” (citation omitted). Id., p. 12, 41 So.3d at 1127. As the Louisiana Supreme Court succinctly stated in Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989):

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what |4is said. Where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact-finder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong, (citations omitted).

Thus, we must determine whether the trial court judge’s factual conclusions in this matter had a reasonable factual basis or are dearly wrong.

DISCUSSION

HHS raises thirteen issues for review; however, the only real issue in this matter is whether the trial court erred in its factual findings concerning whether Mrs. Sassone was, or should have been, aware that Ms. Hymes had recently mopped the floor in her husband’s hospital room. HHS maintains that the only logical conclusion from the testimony of the witnesses at trial is that Mrs. Sassone knew that the floor on which she fell was wet, yet rushed to answer a ringing telephone anyway. HHS submits that the wet floor was an obvious danger and that accident was, therefore, caused by Mrs. Sas-sone’s own fault, or at the least, by her comparative fault. While this may be one possible view of the evidence at trial, the trial court clearly rejected these factual findings.

At trial, three witnesses were called to testify as to the accident itself: Mrs. Sas-sone, Mr. Sassone (whose deposition was entered into evidence as he passed away prior to trial) and James Butler, the former housekeeping director for HSS at |5LBMC. In addition, the parties stipulated to the admissibility of Ms. Hymes’ written statement as Ms. Hymes did not testify at trial. Guided by our appellate standard of review and the great deference accorded to the trial court, we do not find the trial court’s findings to be clearly wrong or without a reasonable factual basis. See, e.g. Rosell, supra.

James Butler (who did not witness the accident) testified that LBMC’s protocol was for its housekeepers to ask family members for permission to mop patients’ rooms. However, neither the incident report prepared by Mr. Butler shortly after the accident, nor Ms. Hymes’ statement reflect that permission was sought from either Mr. or Mrs. Sassone to mop the floor. As such, there is no evidence in the record that Ms. Hymes complied with HHS’s protocol in this regard. To the contrary, both Mr. and Mrs. Sassone testified that Ms. Hymes did not speak to them prior to mopping the floor.

Similarly, while Mr. Butler testified that there was a wet floor sign at the door, he admitted that he did not know when the sign was placed there. While Ms. Hymes’ statement indicates that “[her] wet floor sign was placed at the door,” there is no indication as to when it was placed there, or whether it was clearly visible to Mrs. Sassone. In her testimony, Mrs. Sassone indicated that she never saw the sign, and her husband testified that Ms. Hymes did not put any kind of sign in the room before Mrs. Sassone’s fall.

With respect to the actual events leading up to the fall, again, the trial court considered three versions. In her limited statement, Ms. Hymes noted that Mrs. | fiSassone was sitting in a chair by the door while she was mopping the floor. The phone rang and Mrs. Sassone proceeded towards it, at which time, she slipped and fell.

In his deposition, Mr. Sassone appeared to be somewhat confused. When first asked where his wife was when Ms. Hymes entered the room, he testified that she was on the side of his bed, but could not recall which side. He then testified that she was facing “[a]way from the door.” At that time, according to Mr. Sassone, she was “straightening out the bed ... fixing the pillow and making sure [he] was comfortable.” Later, he testified that his wife was on the right side of the bed while Ms. Hymes mopped the left side. When questioned whether his wife was facing Ms. Hymes while she was mopping on the left side, he stated “[n]o. She was facing the bed.”

Mr. Sassone’s testimony as to whether his wife saw Ms. Hymes was equivocal. He first testified that he “guessfed]” his wife “had to” have seen her although at the same time, he stated that he did not know.

According to Mrs. Sassone’s testimony, as she had for several nights, she slept on a “sleeper chair” the night before the accident. That morning, she pushed the chair from the side of the bed to the opposite side of the room. The phone then rang and, as she proceeded towards the end table, she slipped on a wet substance on the floor. Mrs. Sassone was adamant that Ms. Hymes never spoke to her and that she was unaware of her presence in the room prior to her fall. While Mrs. Sas-sone’s supplemental discovery responses, introduced at trial reflect a different version of the accident, namely that she had been “sitting in a chair in her husband’s room and, when she got up to answer the telephone, she slipped and fell on a foreign substance/liquid on the floor,” we note that her response also directs |7the parties to “see [her] deposition for more detailed discussion.” Defendant suggests that Mrs. Sassone’s discovery responses are inconsistent with her trial testimony; however, HHS did not impeach Mrs. Sassone with any testimony from her deposition in which she stated that the accident occurred in a different manner than that to which she testified at trial.

Finally, we note that Mr. Butler’s incident report indicates that Mrs. Sassone had been sitting in a chair and, “knowing the floor was wet,” went to answer the phone. Again, he did not witness the accident, and he admitted that he did not know what Mrs. Sassone actually knew at the time of the accident. He did not speak with Mrs. Sassone about the accident, as she had already been moved when he arrived on the scene.

HHS maintains that Mrs. Sassone’s denial of seeing Ms. Hymes before the accident is self-serving and her version of the accident “so preposterous that no reasonable fact finder could believe.” We disagree. Mrs. Sassone’s testimony was abundantly clear — she did not see Mrs. Hymes at any time prior to her fall. As a practical matter, we are mindful of the flurry of activity taking place in hospitals on a daily basis. As both Mr. and Mrs. Sassone indicated, at no time prior to entering the room did Ms. Hymes speak with them; she neither announced her presence nor her intention of mopping the floor.

A review of the record in its entirety demonstrates that the trial court’s findings are reasonable in light of that record. Because a fact finder’s choice between two (or more) permissible views of the evidence cannot be manifestly |serroneous or clearly wrong, we cannot but find no error in the trial court’s judgment which we affirm.

AFFIRMED

      . The record does not show that service was obtained on Ms. Hymes or that an answer was filed on her behalf.

      . HHS cites the case of McCord v. West, 07-958, (La.App. 5 Cir. 3/25/08), 983 So.2d 133, for its position that a de novo review is warranted. That case dealt with a trial court’s grant of a partial summary judgment. Indeed, appellate courts review a trial court’s grant or denial of a motion for summary judgment de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. La. C.C.P. art. 966; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). This appeal does not deal with a summary judgment and a de novo review is inappropriate.

      . Expert medical witnesses testified as well; however, neither party challenges the damages award and we need not address the injuries aspect of this case.

      . See, Watters v. Dept. of Social Services, 08-0977, p. 16 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128, 1142, citing Rosell, supra 549 So.2d at 844 (La.1989).

      . See McCaskill v. Rosiere, 2009-0323, p. 6 (La.App. 4 Cir. 8/24/09), 20 So.3d 496, 500.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    CERTIFIED CLEANING & RESTORATION, INC. v. LAFAYETTE INSURANCE COMPANY, Earl J. Doucet, Turf Club Inc., Express Food Deli Inc. d/b/a the Edge Bar and Grill, Gammon Enterprises, LLC and Stephen D. Gammon.
    No. 10-CA-948.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Kevin C. O’Bryon, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Raymond A. Pelleteri, Jr., Alexander R. Saunders, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Mitchell J. Hoffman, Michael R. All-weiss, Serena E. Pollack, Attorneys at Law, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

| ¡>This matter was remanded to this Court by the Louisiana Supreme Court for the limited purpose of having us clarify our previous ruling regarding any contract claims raised by appellants, the Doucets and Lafayette Insurance Company.

In our initial opinion, we found the trial court erred in finding the Doucets and Lafayette Ins. Co. liable under the theories of vicarious liability and negligent hiring. As such, we reversed that portion of the trial court’s April 30, 2010 judgment finding the Doucets vicariously liable for the negligence of Gammon and independently liable for hiring Gammon. We concluded that this finding made it unnecessary to address the last issue raised by appellants relating to a mutual waiver provision in the lease contract. Certified Cleaning & Restoration, Inc. v. Lafayette Ins. Co., 10-948 (La.App. 5 Cir. 6/14/11), 67 So.3d 1277. The Supreme Court disagreed and remanded this matter for us to address the contract issue.

In their appellant brief, the Doucets and Lafayette Ins. Co. scantly argue, without one citation of legal authority, that there is a mutual waiver clause in the please contract between Mr. Doucet and the Turf Club that precludes liability for the damage caused by the fire and which applies to The Edge as a sub-lessee. Appellants contend that under the mutual waiver clause, Mr. Doucet and the Turf Club waived all claims against each other for any loss arising out of damage or destruction of the leased premises which was or could have been insured under a standard fire policy. Appellants further assert each party agreed to insure themselves for their own risks and to obtain a waiver of subrogation from their respective underwriters in favor of the other. Appellees, Certified Cleaning and Underwriters, respond that the contract is ambiguous and, thus, , should be construed against the Doucets for waiver of liability.

In its judgment, the trial court found Certified Cleaning was legally subrogated to The Edge’s contract rights against the Doucets and their insurer, Lafayette Ins. Co., under La. C.C. art. 1826 for Certified Cleaning’s performance of the Doucets’ obligation under the lease to maintain the roof and to repair fire, smoke, and water damage. The trial court found the remediation services provided by Certified Cleaning were covered under the general commercial coverage and property coverage of Lafayette Ins. Co.’s policy issued to the Doucets. Thus, the trial court determined the Doucets and Lafayette Ins. Co. were liable to Certified Cleaning, in solido with The Edge and Gammon, in the amount of $45,992.59.

Additionally, the trial court found Underwriters, The Edge’s insurer, was subro-gated to the rights of The Edge for money Underwriters paid under the insurance policy it issued to The Edge for loss caused by the fire. The trial court concluded that the Doucets were contractually obligated under the lease to maintain the roof, promptly make any repairs due to fire, and to maintain fire insurance on the property, which they did through Lafayette Ins. Co. The trial court determined the policy issued by Lafayette Ins. Co. to the Doucets covered the | ^damages paid by Underwriters to The Edge. As such, the trial court found the Doucets and Lafayette Ins. Co. liable to Underwriters in the amount of $47,775.17.

The trial court also found the Doucets and Lafayette Ins. Co. liable to the Edge in the amount of $90,680.48 for property damage it suffered as a result of the fire and which was not paid by its insurer. The trial court did not indicate whether this amount was based on contractual liability under the lease or on the vicarious liability and independent negligence of the Doucets, which we reversed in our initial opinion.

Paragraph 10 of the lease contract between the Doucets and the Turf Club provides in pertinent part, “Any sub-lessee occupying any part of this space, shall buy [sic] the act of subletting formally or informally, assume all obligations of Lessee, whether or not Lessor knew of or approved or disapproved of such sub-letting.” Thus, the provisions of the lease apply to The Edge, as a sublessee.

Under the lease, the Doucets were responsible for maintaining the roof and were obligated to repair the premises in the event the premises were damaged by fire. The Doucets were also required to maintain fire insurance on improvements in and on the premises, except removable installations which the lessee would be permitted to remove at the expiration of the lease. As lessee, The Edge was required to maintain a general liability insurance policy covering property damage to the leased premises.

The lease also contained a subrogation clause, which stated:

28. SUBROGATION: Neither the Lessor nor the Lessee shall be liable to the other for the loss arising out of damage to or destruction of the leased premises, or the building or improvements of which the leased premises are a part thereof, when such lost [sic] is caused by any of the perils which are or could be included within or are insured against by a standard form of fire insurance with extended coverage, including sprinkler leakage insurance, if any. All such claims for any and all loss, however caused, hereby are waived. Said absence of liability shall exist whether or not the damage or destruction is caused |fiby the negligence of either lessor or I r [sic] by any of their respective agents, servants or employees. It is the intention and agreement of the Lessor and the Lessee that the rentals reserved by this lease have been fixed in contemplation that each party shall fully provide his own insurance protection at his own expense, and that each party shall look to his respective insurance carriers for reimbursement of any such 1038 [sic], and further, that the insurance carriers involved shall not be entitled to subrogation under any circumstances against any party to this lease. Neither the Lessor nor the Lessee shall have any interest or claim in the other’s insurance policy or policies, or the profit thereof, unless specifically covered therein as a joint assured.

It is this paragraph upon which the Dou-cets rely to support their position that the parties mutually waived their right to sub-rogation and, thus, the trial court erred in finding them liable to Certified Cleaning and Underwriters.

Louisiana Civil Code article 1825 defines subrogation as “the substitution of one person to the rights of another.” A subrogee can have no greater rights than those possessed by its subrogor and is subject to all limitations applicable to the original claim of the subrogor. Gray Ins. Co. v. Old Tyme Builders, Inc., 03-1136 (La.App. 1 Cir. 4/2/04), 878 So.2d 603, 607; Orgeron v. Prescott, 93-926 (La.App. 5 Cir. 4/14/94), 636 So.2d 1033, 1042. Therefore, the rights of Certified Cleaning and Underwriters against the Doucets depend on the interpretation of the subrogation clause.

A lease is a contract between the parties. La. C.C. art. 2668. A contract must be interpreted in light of the common intent of the parties. La. C.C. art. 2045. If the words of a contract are “clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties intent.” La. C.C. art. 2046. Each provision of 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 ambiguity exists in a contract, the ambiguity is to be construed against the party providing the text. La. C.C. art. 2056. See also, Lifemark Hospitals of Louisiana, Inc. v. Gulf South Medical and |6Surgical Institute, Inc., 03-1122 (La.App. 5 Cir. 1/27/04), 865 So.2d 903, 907; F & G Investments, L.L.C. v. 1313 Hickory, Ltd., 01-989 (La.App. 5 Cir. 1/15/02), 807 So.2d 1004, 1005.

The trial court found the Doucets liable to Certified Cleaning for $45,992.59 on the basis Certified Cleaning was subrogated to the rights of The Edge. The trial court reasoned that the Doucets were obligated under the lease to repair fire damage to the property. Under the terms of the lease, the Doucets were required to maintain fire insurance on the property and were obligated to repair any fire damage to the property.

“A waiver occurs when there is an existing right, a knowledge of its existence and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished.” Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94), 643 So.2d 1213, 1216. We do not find the waiver clause relieved the Doucets of their obligation to repair the fire damage to the property. The Edge’s voluntary action of hiring Certified Cleaning to remediate the fire damage cannot be considered a knowing and intentional relinquishment of a known right to have the Doucets repair the fire damaged property. The waiver language is clear that the parties agreed to waive any losses each would suffer as a result of damage to the property. They did not agree to waive the Doucets’ responsibility to repair the premises. Thus, we affirm that portion of the trial court’s judgment finding the Doucets liable, in solido with The Edge and Gammon, to Certified Cleaning in the amount of $45,992.59.

The trial court also rendered judgment against the Doucets in favor of the Underwriters for $47,775.17 on the basis Underwriters was subrogated to The Edge’s rights against the Doucets for damage Underwriter paid under the insurance 17policy it issued to The Edge. Underwriters, as subrogee, can have no greater rights than The Edge.

Under the lease, The Edge was required to maintain a general liability insurance policy, which it did through Underwriters. According to Underwriters, this insurance policy insured The Edge for loss of contents, but not structural damage, up to $50,000 minus a $1,000 deductible. As a result of the fire, Underwriters paid The Edge $47,775.17 for loss of contents and improvements made by The Edge, which included a cash register system and a video camera system. Underwriters did not pay The Edge any amount for building repairs.

Under the mutual waiver clause of the lease, contained in paragraph 28, The Edge agreed to waive any claim against the Doucets for losses it suffered as a result of damage or destruction of the leased premises. As a result of the fire, The Edge suffered loss of its personal property on the premises, including among other things bar stools, televisions, drinking glasses, food and paper products, DJ equipment and lighting, cash register system, video camera equipment, and beverage air coolers. These losses were the exact things the parties agreed to waive against each other. We find the mutual waiver clause precludes Underwriters from recovering from the Doucets through subrogation.

The trial court further awarded The Edge $90,680.48 for property damage it suffered as a result of the fire and which was not paid by Underwriter. It is unclear how the trial court calculated this amount of damages. At trial, Mr. Maenza testified regarding money he paid to repair and replace various items damaged as a result of the fire. These items included costs related to structural repairs and to replacing personal property. These receipts were offered into evidence as Edge Exhibits 1-26, and totaled $86,000.54. Additionally, Mr. Maenza testified he lost approximately $75,000 in profits during the time The Edge was not operating | ^because of the fire. Thus, The Edge showed losses in the total amount of $161,000.54. Of these losses, Underwriters paid $47,447.17, leaving a balance of $113,225.37. However, under the lease, The Edge waived its right to claim losses it suffered as a result of the fire from the Doucets, which includes loss of personal property and profits.

To the extent the trial court’s judgment in favor of The Edge against the Doucets includes amounts related to The Edge’s loss of personal property and profits, we find the trial court erred. Accordingly, because we cannot ascertain from the record which of the receipts relate to replacement of personal property for which The Edge is liable and those which relate to structural repairs for which the Doucets are liable, we vacate that portion of the judgment in favor of The Edge against the Doucets in the amount of $90,680.48 and remand the matter for an evidentiary hearing to determine which of the receipts contained in The Edge’s exhibits 1-26 are related to building repairs for which the Doucets are liable.

DECREE

For the reasons stated in our original opinion and those discussed above, we reverse that portion of the trial court’s April 30, 2010 judgment finding the Doucets vicariously liable and independently liable for negligent hiring. We further reverse that portion of the judgment in favor of Underwriters against the Doucets in the amount of $47,447.17. We affirm that portion of the judgment in favor of Certified Cleaning against the Doucets, in solido with The Edge and Gammon, in the amount of $45,992.59. Additionally, we vacate that portion of the judgment in favor of The Edge against the Doucets in the amount of $90,680.48 and remand the matter for an evidentiary hearing to determine what portion of that amount is related to building repairs, for which the Doucets are liable, as opposed |flto damages relating to personal property and personal losses, for which The Edge is liable.

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS


author: CLARENCE E. McMANUS, Judge.

text:
    Hilda AZURDIA v. Cynthia HOWARD and Allstate Insurance Company.
    No. 11-CA-694.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.
    Ivan A. Orihuela, Attorney at Law, Ken-ner, LA, for Plaintiff/Appellant.
    Frederick A. Miller & Associates, Constance C. Hobson, Attorney at Law, Me-tairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERTA. CHAISSON.
   CLARENCE E. McMANUS, Judge.

| ¡.Plaintiff appeals the granting of summary judgment in favor of defendants. For the reasons which follow, we reverse the trial court’s judgment.

STATEMENT OF THE CASE

Plaintiff, Hilda Azurdia, filed a petition on October 19, 2007, seeking damages for injuries she sustained in a car accident on October 19, 2006, in which her vehicle was allegedly rear ended by a vehicle driven by Cynthia Howard. Howard was insured by State Farm Mutual Automobile Insurance Company at the time of the accident. Azurdia was insured by Allstate Insurance Company, and her coverage included un-derinsured/uninsured motorist coverage. Azurdia’s original petition for damages asserted that Howard was uninsured, so her petition only asserted claims against Allstate under her own uninsured/underin-sured motorist coverage. On January 19, 2008, she amended her petition to name State Farm, Howard’s insurer, as a defendant.

Discovery was propounded to Azurdia, including requests for photographs, estimates and documentation of the damage to the vehicle. The deposition of Azurdia was taken on July 21, 2009. On February 17, 2010, State Farm filed a [..¡motion for summary judgment. State Farm contended that even though discovery had been propounded to Azurdia requesting documentation that an accident did occur and that there was damage sustained, no documentation was provided by Azurdia. Further, State Farm pointed out that Allstate, Azurdia’s insurer, only learned of the alleged accident when it was served with the lawsuit. Allstate was never provided documentation of the accident and no claim was ever made under Azurdia’s collision coverage with Allstate. Additionally, Azurdia did not obtain a police report. Thus, State Farm argued there was no corroborating evidence that any contact occurred between the two vehicles, therefore, it was entitled to summary judgment.

The motion for summary judgment was heard by the trial court on May 10, 2010. Counsel for State Farm appeared at the hearing, however, counsel for Azurdia did not appear. On May 12, 2010, the trial court issued a judgment granting summary judgment in favor of defendants, State Farm and Howard, and dismissing Azurdia’s claims.

On May 19, 2010, Azurdia filed a motion for new trial arguing she, through her counsel of record, had not been served with notice of the original hearing date for the motion for summary judgment hearing, nor the date set for the hearing following the motion to continue. Therefore, she argued she was denied due process because the hearing proceeded without her counsel being present. Azurdia attached copies of service returns which show the sheriffs office attempted to serve her counsel at an Esplanade Avenue address in Kenner, but noted that he was “[n]ot at this address”. On the same date Azurdia filed a motion for new trial and Azurdia’s counsel filed a Notice of Change of Address providing his new office address.

I/The trial court held a hearing on the motion for new trial on September 21, 2010 and on September 22, 2010, the trial court issued a judgment denying the motion for new trial. Azurdia now appeals the trial court’s denial of her motion for new trial and the granting of the motion for summary judgment.

DISCUSSION

On appeal, Azurdia contends she, through her counsel of record, was never served with notice of the hearing for the motion for summary judgment. Azurdia’s counsel claims that he moved office locations, so service at the old address was refused and he was not served at his new office address. Azurdia contends the judgment granting summary judgment in favor of defendants is a nullity because of insufficient service of process and she is entitled to a new trial on the motion for summary judgment.

State Farm contends that it properly requested service of the motion for summary judgment on Azurdia, through her counsel of record at 1900 Esplanade Avenue, Suite 203, Kenner, Louisiana, which was the address provided on the petition for damages and other documents filed into the record. State Farm further asserts the trial court correctly granted summary judgment in its favor because there was no evidence presented that an accident actually occurred.

This is an appeal from the granting of a motion for summary judgment. It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Michael v. Poche, 10-CA-230 (La.App. 5 Cir. 10/26/10), 52 So.3d 133, citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together | swith the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

In the motion for summary judgment, State Farm argued there was no corroborating evidence presented by Azurdia to show that any contact occurred between the two vehicles. Discovery requests were sent to Azurdia by State Farm and Allstate requesting photographs of the damage to the vehicle, estimates for the damage repairs, and documentation of the damage to the vehicle. However, Azurdia did not provide any of this documentation to either defendant.

In support of the motion for summary judgment, State Farm submitted the affidavit of defendant, Cynthia Howard, in which she stated that no contact occurred between her vehicle and Azurdia’s vehicle on October 19, 2006 or any other date. Additionally, State Farm presented the affidavit of Kellie Freeman, an Allstate claims adjuster. Freeman states in her affidavit that she researched Allstate’s records regarding this alleged accident and found that the claim was reported by Azurdia only by way of service of the lawsuit naming Allstate a defendant. Freeman further stated that no police report was ever produced by Azurdia. Freeman also stated that no claim was ever pursued under Azurdia’s auto collision insurance coverage for any alleged damage to her vehicle.

In her deposition, Azurdia testified that she was on her way to work on the day of the accident. She testified that she was driving on the bottom portion of the elevated expressway and all of a sudden she felt a hit from behind. She stated she was not at a stop and was probably traveling about 35 to 45 miles per hour in the left lane. Following the hit, Azurdia testified she got out of the car, but Howard never exited her car. Howard was on her cell phone so Azurdia thought she was calling the police, but she did not. Azurdia testified that Howard told her she could just write down her policy information and driver’s license number. Azurdia stated | fithat Howard apologized, saying she was looking at something and that is why she did not stop in time. Howard then wrote down her phone number and gave it to Azurdia. Azurdia contends she tried to call the number, but it was not a good number.

After reviewing the record in this matter, we disagree with the trial court and find summary judgment is not appropriate in this case. We find genuine issues of material fact exist regarding whether or not an accident actually occurred. Azurdia claims in her petition, and in her deposition, that Howard’s vehicle hit her vehicle. Howard claims no collision occurred. Thus, we are left with a question of fact which must be determined by a trier of fact.

Accordingly, the judgment of the trial court granting summary judgment in favor of State Farm and Howard is reversed.

REVERSED


author: MARION F. EDWARDS, Chief Judge.

text:
    Christopher George HAINES v. ST. JOSEPH BAPTIST CHURCH.
    No. 11-CA-1028.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.
    Thomas H. Leach, III, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    Joseph B. Morton, III, Forman, Perry, Watkins, Krutz & Tardy, LLP, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and ROBERT A. CHAISSON.
   MARION F. EDWARDS, Chief Judge.

| aThe present appeal is taken from the grant of summary judgment in favor of the plaintifi/appellee, Christopher George Haines (“Haines”), and against the defendant/appellant, St. Joseph Baptist Church (“St. Joseph”). St. Joseph also urges that its Motion for Summary Judgment and its Motion for New Trial were improperly denied.

The matter arises as the result of a Suit to Quiet Title filed by Haines against St. Joseph. In the petition, Haines stated that he was the owner of immovable property in the Saddler Subdivision, Lots Nos. 19 and 20, at 5613 Fourth Street in Marre-ro, Louisiana. He urged that he had purchased the property from the Succession of Josephine Trupiano, wife of/and Frank Romano, in 1995. His predecessor in title had, in turn, purchased the lots in 1928 and 1929, and, in the early 1940’s, had constructed their family home on the lots. It was admitted that the structure encroached on the adjoining lot, 210-A, owned by St. Joseph. Haines urged that he and his ancestors in title had maintained open, peaceful, and uninterrupted possession and that he should be recognized as owner of the encroachment by virtue of thirty years of acquisitive prescription. St. Joseph |sanswered, urging that the encroachment constituted a trespass, and that lot 210-A is and has been used as a cemetery, is in the public domain, and is not subject to acquisition by possession.

Haines filed a Motion for Summary Judgment, following which St. Joseph also moved for summary judgment in its favor. The trial court conducted a hearing and subsequently granted Haines’ motion while denying that of St. Joseph. St. Joseph has appealed.

Haines filed a copy of the 1928 Act of Sale of Lot 20 from Westminster Presbyterian Church of New Orleans to Mr. Romano as well as a copy of the 1929 Act of Sale of Lot 19 from Dominick Saladino to Mr. Romano. He also filed affidavits from Romano’s granddaughter and grandson, attesting that the Romanos had owned Lots 19 and 20, and they had built the existing structure in the 1940’s as their family home. A copy of the 1952 assessment roll for the Parish of Jefferson was filed, evidencing Mr. Romano as owner of the lots and improvements, as well as a copy of the 1995 act of sale to Haines. A copy of a 1995 survey indicates the improvements to the lots extend onto Lot 210-A, for a distance of eleven feet. Finally, Haines attached a copy of a Quitclaim deed dated January 80, 1996, in which Marrero Land and Improvement Association transferred Lot 210-A to St. Joseph.

In support of its motion, St. Joseph attached a copy of a survey done in 1996 evidencing Lot 210-A as a cemetery that contained at least one grave. Further, it attached an Affidavit of Ownership passed in March 1988, from the Rev. Taitón W. Lewis, former Pastor of St. Joseph, establishing that the lot has been known as the St. Joseph Cemetery and that the church had participated in many burial rites there. The affidavit references a 1921 Plan of the “Robinson Avenue Subdivision,” and describes the cemetery plot as the “last lot facing Fourth Street ... next to Lot |4No. 210.” According to the affidavit, the map indicates an official dedication of the cemetery plot, and the church has exercised control over it and been recognized as the owner. The affidavit stated it was to be recorded registering the plot in the name of St. Joseph.

The transcript reveals the trial court found that, prior to the present laws passed in 1974 (presumably La. R.S. 8:1 et seq.), there was no specific delineation of “what constituted a cemetery, whether or not there was one indefinable headstone or not....” The trial court considered the date that the house was constructed and the “date of the dedication.” The court then found there was no law detailing cemetery uses, that is, “what they must contain and what they must indicate,” and granted summary judgment in favor of Haines while denying St. Joseph’s motion. In so doing, the court determined that, although the building did encroach on the lot in question, it “did not really violate the law regarding ... cemetery uses.” The judge concluded that Haines was not in violation of the law, and his boundary should be “that line that an engineer might draw that would encompass just the house and the slab it’s sitting on ... allowing for any easements that may exist and be concomitant with any building structures.”

Prior to- codification of cemetery laws, our jurisprudence determined the law regarding cemeteries. According to the cases, a graveyard becomes dedicated for cemetery purposes by virtue of the long and exclusive usage of this property for these purposes. The Third Circuit summed up the law as follows:

In Locke v. Lester, 78 So.2d 14 (La.App. 2nd Cir.1955), plaintiffs sought to determine the boundary between a cemetery and the neighboring landowner. Landowner contended that the cemetery had never been properly dedicated, but the record showed that for over fifty years there had been no restrictions or conditions imposed upon the right of anyone to be buried in the cemetery, and it was informally dedicated to the public. The Court stated:
‘We are of the opinion the reservation of said tract of land for use by the public as a burial ground or cemetery and its continuous use by [¡¿he general public since it was set apart as a burial ground, is legally sufficient to dedicate said property for public use. In Humphreys v. Bennett Oil Corporation, 1940, 195 La. 531, 197 So. 222, 227, where under consideration was a plot of ground which had been transferred to a church for church and cemetery purposes, the court held that by making herself a party to the deed the vendor showed unmistakably an intention to set the lot apart for church and cemetery purposes to be devoted and consecrated to those purposes only. In the opinion Justice Odom said:
‘It is our opinion, and we hold, that the dedication of this plot of ground for cemetery purposes was complete, and, since plaintiffs relied in good faith on the dedication made by the owners of the land and buried their relatives there under permits, it follows that they acquired rights therein which could not be divested by any subsequent disposition made of the property either by the fee owners or the churches, or both.
‘The one-acre plot of ground having been set apart for a cemetery and its use for that purpose having been accepted by these plaintiffs and many others, neither the fee owners nor the churches could later use, or empower another to use, it for any purpose inconsistent with the use for which it was dedicated.
‘Where the intent of the transferor has been to abandon certain property for public use and the property is used by the general public, the dedication thereof will be regarded as complete without necessity of formal acceptance by a public or quasi public corporation. (Citations omitted)
‘A parcel of land or property dedicated for use by the general public as a cemetery and which continues to serve that public purpose, is classified as a public thing under provisions of the LSA-Civil Code, and as such it is not susceptible of ownership, cannot be alienated and is not subject to prescription. LSA-Civil Code Articles 453, 454, 458, 481, 482 and 483. (other Citations omitted.) ⅜ ⅜ * ’ 78 So.2d 14, 15, 16.

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law.

In the present matter, Haines contends that there is no evidence that the property in question was a cemetery until the Quitclaim deed was executed by Mar-rero Land Company in 1996. According to Haines, his ancestors in title had | ^peaceable uninterrupted possession for thirty years prior to that act and, therefore, La. C.C. art. 3486 applied to grant him title.

Our de novo review of the evidence of record discloses that St. Joseph has placed at least one material fact at issue, that is, how long has the subject property been a cemetery? The fact that it was transferred to St. Joseph by Quitclaim in 1996 does not put the question to rest. According to the affidavit of Rev. Lewis, the lot had been used for burial for many years prior to 1983, and there exists a survey evidencing its dedication as such at least as far back as 1921. If the dedication of the lot as a cemetery was complete prior to the thirty years asserted by the plaintiff, then, under the existing law, Haines’ ancestors in title could not assert acquisitive prescription. The jurisprudence quoted above appears to give St. Joseph standing to assert this action. Also see Riverie v. Mills wherein the First Circuit found that plaintiffs who had relatives buried in the cemetery had a right to bring an action for declaratory judgment to require the defendant to remove a fence allegedly encroaching on cemetery property.

The existence of this material fact precludes summary judgment in favor of either party at this time. Haines was not entitled to judgment as a matter of law.

Therefore, we reverse the summary judgment in favor of Haines, affirm the denial of summary judgment in favor of St. Joseph, and remand the matter to the trial court for further proceedings. Because we set aside the summary judgment, the judgment denying a new trial is moot.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

      . Vidrine v. Vidrine, 225 So.2d 691, 696-97 (La.App. 3 Cir.1969), writ refused, 254 La. 853, 227 So.2d 594 (1969). See also, In re St. James Methodist Church of Hahnville, 95-410 (La.App. 5 Cir. 12/27/95), 666 So.2d 1206, 1209, writ denied, 96-0278 (La.3/15/96), 669 So.2d 421.

      . Wallace, v. Treasure Chest Casino, L.L.C., 05-484 (La.App. 5 Cir. 12/27/05), 920 So.2d 251, 254-55.

      . Vidrine v. Vidrine, supra; Locke v. Lester, supra.

      .481 So.2d 1050 (La.App. 1 Cir. 1985).


author: JUDE G. GRAVOIS, Judge.

text:
    Frank WILLIS v. Ryan MEILLEUR d/b/a Rapid Services, Robert T. Lorio, Salvador M. Brocato, III, Jim S. Hall, Salvador M. Brocato, III, a Professional Law Corporation and Jim S. Hall and Associates.
    No. 11-CA-705.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.
    Rehearing Denied Aug. 20, 2012.

      William R. Mustian, III, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    William E. Wright, Jr., Charlotte C. Meade, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    David S. Daly, Attorney at Law, Metair-ie, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

IgThe plaintiff has appealed the jury verdict in favor of the defendants in this legal malpractice case. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Frank Willis, was rendered a quadriplegic on April 5, 2002 when he fell from the roof of a structure he was working on. At the time of his accident, plaintiff was a subcontractor for Rapid Services. The owner of Rapid Services, Ryan Meilleur, filed a report of this injury with the Office of Workers’ Compensation. Rapid Services’ workers’ compensation insurer, the Louisiana Commerce & Trade Association Self Insurer’s Fund, initially denied payment of any benefits other than medical expenses. Plaintiff contracted with attorney Salvador Brocato of the law firm of Jim Hall and Associates to represent him in his workers’ compensation ease. A mediation hearing was held with the Office of Workers’ Compensation on August 8, 2002. As a result of the mediation hearing, |sit was agreed that the insurer would begin paying plaintiff minimum wage workers’ compensation benefits ($106 per week), retroactive to the date of the accident. In answers to interrogatories, plaintiff stated that during the five years preceding his accident, he earned from $28,000 to $30,000 per year doing roofing work. However, plaintiff was unable to produce any documentation to substantiate these alleged earnings.

On July 7, 2003, a mediation was held between the parties in an effort to settle plaintiffs workers’ compensation claim. The mediation was attended by plaintiff, his son, and his attorneys, Jim Hall and Salvador Brocato, as well as a representative of the insurer, and the insurer’s attorney, Robert Lorio. As a result of the mediation, the parties reached a settlement agreement in which plaintiff would receive a lump-sum payment of $120,000, plus payment of his attorneys’ fees, payment of medical expenses in the amount of $32,000 per year, payment to plaintiff of $500 per month for life, and a waiver by Rapid Services and its insurer of all subro-gation rights in plaintiffs third-party tort claim. This settlement agreement was approved by the workers’ compensation judge on September 9, 2003. The settlement of plaintiffs workers’ compensation claim was consummated shortly thereafter.

On April 28, 2004, plaintiff filed a disputed claim for compensation with the Office of Workers’ Compensation seeking to set aside the settlement agreement based on misrepresentations. Plaintiff contended that his attorneys misrepresented to him that he would continue receiving 24-hour nursing care and other medical services after the settlement. The workers’ compensation court held a trial on plaintiffs petition on September 8, 2004. On December 28, 2004, the workers’ compensation judge rendered judgment denying plaintiffs motion to set aside the settlement agreement.

|4On December 6, 2004, plaintiff filed suit against his attorneys, Salvador Broca-to and Jim Hall, defendants/appellees in this appeal, alleging that they committed legal malpractice in their representation of him in his workers’ compensation case. Plaintiff alleged that defendants failed to obtain approval of the workers’ compensation settlement by the Social Security Administration and/or Medicare, thereby jeopardizing his future entitlement to Medicare, that defendants failed to obtain the $30,000 lump-sum payment which he was entitled to pursuant to La. R.S. 23:1221(4)(s)(i), that the settlement was inadequate to cover his estimated $160,000 per year costs for medical assistance, and that defendants failed to pursue proof of his prior earnings.

After numerous pretrial motions and hearings, the matter proceeded to trial. At trial, Mr. Brocato testified that the reason why plaintiff originally received only $106 per week in workers’ compensation benefits was because there was no evidence of his prior earnings. Plaintiff had not filed income tax returns in over fifteen years. Mr. Brocato testified that plaintiff wanted to go to mediation because he wanted to settle his case and receive a lump-sum payment so that he could buy a house and a dump truck, explaining that plaintiff complained that he “was starving” on the $106 weekly payments. Mr. Broca-to further explained that he was concerned that the workers’ compensation insurer would file a motion to dismiss the claim due to plaintiffs inability to prove his prior wages. Mr. Brocato explained that because of plaintiffs failure to file tax returns, he did not qualify for Medicare or Social Security benefits. Rather, plaintiff received Supplemental Security Income and Medicaid benefits. Mr. Brocato testified that they contracted with NuQuest in order to determine the effect of the settlement on any Social Security and Medicare benefits plaintiff may have been receiving or was entitled to. NuQuest rendered a report stating that Medicare and Social Security did not [shave to approve the settlement because plaintiff did not meet the then-current review threshold. Mr. Bro-cato testified that he relied on NuQuest’s report in settling plaintiffs case. He explained that NuQuest confirmed that plaintiff could not have more than $2,000 in countable assets in order to receive Medicaid. Because plaintiff intended to purchase a house and/or a dump truck with the settlement funds, these would not be considered countable assets.

Mr. Brocato admitted that a written demand had not been made for the $30,000 lump-sum payment pursuant to La. R.S. 23:1221(4)(s)(i). However, Mr. Brocato stated that this payment was personally discussed with the insurer’s attorney and Mr. Brocato was concerned that if this issue was pushed, the entire settlement could be lost. He explained that he thought it would have been futile to file a written demand for this sum. He concluded that the $30,000 was paid as a result of all the “dispute in this case.” Mr. Brocato explained that plaintiffs workers’ compensation claim was a tough case because there were allegations of fraud due to plaintiffs inability to prove his prior wages. Further, plaintiffs employee, Raymond Ballard, was also injured in this accident. Because plaintiff did not have workers’ compensation insurance for his employee, plaintiff could have been responsible for reimbursing Rapid Service’s compensation insurer for payments it made to or on behalf of Mr. Ballard.

Mr. Brocato acknowledged that he hired Nathan Fentress to do a life-care plan for plaintiff. Mr. Fentress rendered a report stating that it would take | f,$160,000 per year to maintain plaintiffs care. However, this report was based on plaintiff receiving 24-hour care. Mr. Brocato testified that he disagreed with Mr. Fentress’ report because Dr. Katz, plaintiffs choice of treating physician, wrote a report stating that plaintiff only needed seven hours of direct care per day. The compensation insurer also had a report that stated plaintiff did not require 24-hour care. Mr. Brocato testified that prior to the settlement, a company named Private Care was providing care to plaintiff. Some of plaintiffs family members were trained and employed by Private Care; they cared for plaintiff and were compensated by Private Care. After the settlement, Private Care continued paying plaintiffs family members to care for him. Sometime in December 2003, Private Care was notified that the insurer would not pay for care after the date of the settlement, September 2003. Thereafter, Private Care sought to get payment from plaintiff. A Private Care representative, Ms. Fulgenzi, contacted Mr. Brocato about these charges. Mr. Brocato explained that Private Care billed the compensation insurer $25 per hour when plaintiffs family members cared for plaintiff, but the family members were only paid $7 per hour. For this reason, in the mediation it was determined that $32,000 per year was sufficient to cover payment to plaintiffs family members for caring for plaintiff. Additionally, Mr. Brocato testified that at the mediation, plaintiff stated that $32,000 would be enough money to pay his family members directly for caring for him. Mr. Brocato explained that plaintiff wanted complete control over who cared for him and what they were paid. Based on these discussions and agreement, the $32,000 per year in medical expenses was put into a fund and managed by MedBill. Plaintiff submitted invoices to MedBill and they sent him the money to pay his family member caretakers.

17Mr. Brocato denied that plaintiff was illiterate. He further testified that plaintiff participated in the mediation and that all aspects of the settlement were explained to him. Mr. Brocato testified that he later went over each paragraph of the settlement documents with plaintiff in his office. This took about 30 minutes. After the settlement checks were received, he brought them out to plaintiff, who was in his van, to sign the checks. Three to five days later, settlement funds in the amount of $99,452.73 were distributed to plaintiff.

Jim Hall testified that he paid all of the costs of plaintiffs workers’ compensation litigation and loaned plaintiff $12,000 during the pendency of his workers’ compensation litigation. Mr. Hall explained that he and Mr. Brocato had discussed obtaining the $30,000 lump-sum for plaintiff so he would not have to loan him money, but the compensation carrier refused to pay this amount. He and Mr. Brocato did not want to pursue this issue because they were concerned that the compensation carrier would discontinue the medical benefits.

Mr. Hall also denied that plaintiff was illiterate or that he did not understand the mediation proceedings or the settlement. He described plaintiff as being “very sharp.” He testified that at the mediation, plaintiff stated that he wanted a lump-sum and complete control over paying his caretakers. He testified that he and Mr. Bro-cato explained to plaintiff that the compensation carrier could seek reimbursement from any money plaintiff received from the third-party tort suit, and that as part of the settlement, the compensation carrier was waiving this right.

Mr. Hall further testified that plaintiff knew that Private Care would not be involved in his care after the settlement and that a fund would be set up from which he could pay his family members directly to care for him. He testified that plaintiff wanted to control this fund. In support of his belief that plaintiff knew | ^Private Care would not be involved in his care after the settlement, Mr. Hall pointed out that plaintiff called Mr. Brocato after the settlement to tell him that Private Care was still providing him care. Mr. Hall further testified that the $32,000 payment for plaintiffs annual care was the amount recommended on the report done for the workers’ compensation insurer.

Mr. Hall also testified that plaintiffs total workers’ compensation settlement was about one million dollars. He felt that this was a very good settlement under all of the particular facts and circumstances involved with plaintiffs case. He felt that because of the fact that plaintiff was unable to produce any records of prior earnings, plaintiff could have easily ended up with nothing, or could have ended up with only $106 per week for life.

Since plaintiff was deceased at the time of trial, his deposition and prior testimony was read to the jury. In this testimony, plaintiff stated that his monthly expenses were about $2,000 per month, which included his cable television, phone, water, utilities, gasoline, and car insurance expenses. He and his live-in girlfriend received $125 per month in food stamps and he received $500 per month from Social Security. He acknowledged that he wanted to settle his case, but he did not think it would turn out like it did. He wanted a big settlement so he could build a house, buy a van, and get medical care. Plaintiff denied that he urged his attorney to settle his case and that a settlement amount was ever discussed. Plaintiff testified that he had no choice but to settle his case because Mr. Brocato told him that if he did not settle, he may have ended up getting only $106 per week for life. At the mediation, Mr. Brocato told him that he would get $100,000 if he settled, and if he did not take this, he may get nothing. Plaintiff testified that Mr. Brocato told him that Mr. Ballard (plaintiffs employee) said that he and plaintiff had put up the boards that plaintiff stepped on when he fell. Plaintiff testified that he was |fltold that he would be able to keep his “medical help” after he settled, but “it went the other way.” Plaintiff testified that he understood that he would receive $32,000 per year to do whatever he wanted to. He explained that his family was being paid $6.50-$7.00 per hour to care for him, but they wanted a raise. He did not buy a house with his settlement funds, but he did buy a van and a dump truck. He had a driver for the dump truck and on a good week was able to earn $300-$400. Plaintiff testified that he paid his girlfriend and his son $1,000 each per month to care for him. In addition, he paid a nurse $600 per month. Plaintiff testified that the doctor stated that he needed 24-hour care for the rest of his life. Plaintiff testified that he would not have settled his workers’ compensation case if he had known that his medical and nursing care would not be paid.

Plaintiff acknowledged signing the settlement documents, but denied that these documents were explained to him. He testified that he is unable to read; he merely signed where his attorney told him to sign.

Plaintiff testified that he never informed Social Security about his settlement, but when they found out about it, his monthly Social Security benefit of $552 per month was decreased to $507 per month.

Plaintiff testified that his attorney told him that he had to prove how much he was earning at the time of the accident, but he had no records to prove how much money he earned. He told his attorney to get records from the contractors he worked for, but his attorney failed to do so. He stated that he had last filed income tax returns fifteen or twenty years previously.

Robert Lorio, the attorney for the workers’ compensation insurer, testified that plaintiffs attorneys were making demands for payment, but there were issues as to whether compensation was actually owed. Mr. Lorio explained that his client was the workers’ compensation carrier for Rapid Services. Rapid Services was the | ^general contractor on a project and they subcontracted a portion of the work to plaintiff and his employee to perform. Mr. Lorio explained that there were several defenses to plaintiffs compensation claim.

Under Louisiana law, if a subcontractor does not have workers’ compensation insurance, then the general contractor’s workers’ compensation insurance will cover the subcontractor’s employees. In this instance, plaintiff was not an employee; rather, he was the owner of the subcontracting roofing company. Mr. Lorio testified that plaintiffs employee, Mr. Ballard, was also injured in the same accident. His client had paid compensation benefits to Mr. Ballard and as a result they could have sought indemnity from plaintiff, since plaintiff was Mr. Ballard’s employer. Mr. Lorio further testified that plaintiff made claims regarding his prior income in an effort to increase his compensation benefits. Because plaintiff was unable to prove his prior earnings, it could have been determined that he violated the fraud portion of the workers’ compensation statute, and as a result, would not have been entitled to benefits. Mr. Lorio explained that he sent requests to plaintiffs prior employers and found there were no records and that plaintiff had not filed income tax returns in over twenty years. Mr. Lorio testified that at the mediation, he made it clear that if plaintiff was unwilling to settle the case, he would go forward with these defenses. Documents prepared by Mr. Lorio in the workers’ compensation suit asserting the defenses were admitted into evidence.

Mr. Lorio testified that plaintiffs attorneys made a number of demands in this case and he made it clear that if the $30,000 was “brought up,” his client would not pay it. He explained that at the mediation, his client had three choices: (1) to not settle and continue to pay plaintiffs care; (2) allow plaintiffs family to take over the care and provide a fund for plaintiffs care for life; or (3) deny liability to plaintiff and pursue the defenses. He explained that because the [^defenses were not a “home run,” his client agreed to settle for the “middle ground,” because had they not been successful at trial, his client could have ended up paying more. Despite these defenses, Mr. Lorio explained that his client paid for plaintiffs medical care because that was the humane thing to do until the claim was fully investigated.

Mr. Lorio testified that the settlement had no impact on plaintiffs Social Security or Medicaid benefits. NuQuest was hired after the mediation to determine whether Social Security or Medicare would have to approve the settlement; however, Nu-Quest determined that such approval was not needed.

Mr. Lorio testified that the life-care plan he had performed for plaintiff indicated that plaintiff would need $470,000 in future medical care for his entire life, which was $32,000 per year.

Voluminous documents were admitted into evidence. These include a letter from NuQuest explaining that plaintiff is not eligible for Social Security or Medicare benefits because he had not “earned enough quarters.” Rather, plaintiff was receiving Supplemental Security Income and Medicaid benefits. This letter stated that based on these findings, plaintiffs case did not meet the current review threshold and approval was not necessary. Answers to interrogatories dated November 17, 2005 in which plaintiff states that he is receiving “SSI” payments of $570 per month were also admitted into evidence.

At the conclusion of the three-day trial, the jury ruled in favor of Mr. Brocato and Mr. Hall and against plaintiff, dismissing plaintiffs claims. On November 22, 2010, the trial court heard and denied plaintiffs motions for new trial and judgment notwithstanding the verdict. This appeal followed.

119ANALYSIS OF ASSIGNMENTS OF ERROR

On January 12, 2011, plaintiff filed a motion for appeal, seeking to appeal the May 5, 2009 judgment granting defendant’s motion in limine, the September 2, 2010 jury verdict, and the November 22, 2010 judgment denying plaintiffs motion for a new trial and judgment notwithstanding the verdict.

With regard to the May 5, 2009 judgment granting defendant’s motion in li-mine, that judgment was an interlocutory judgment and not subject to this Court’s appellate jurisdiction. Plaintiff sought review of that judgment by filing a supervisory writ. This Court denied relief, finding that the trial court had not abused its discretion in ruling on this evidentiary matter. Willis v. Meilleur d/b/a/ Rapid Services, 09-360 (La.App. 5 Cir. 5/27/09) (unpublished writ disposition), writ denied, 09-1381 (La.10/16/09), 19 So.3d 477. However, plaintiffs arguments relative to the ruling on this motion and the effect it had on his trial were preserved for appellate review and are discussed infra in his assignments of error.

Plaintiff also appealed the November 22, 2010 judgment denying his motion for a new trial and judgment notwithstanding the verdict. The denial of a motion for new trial is not an appealable judgment. Shultz v. Shultz, 02-2534, p. 3 (La.App. 1st Cir. 11/7/03), 867 So.2d 745, 746. Nevertheless, the denial of a motion for new trial is subject to review on appeal in connection with the review of an appealable judgment in this case. Moran v. G & G Construction, 03-2447, p. 11 n. 4 (La.App. 1 Cir. 10/29/04), 897 So.2d 75, 83 n. 4, writ denied, 04-2901 (La.2/25/05), 894 So.2d 1148. However, the record before us on appeal, which was designated by the parties, does not contain the transcript of the hearing on the | ^motions for a new trial and judgment notwithstanding the verdict. Further in his brief, plaintiff argues the merits of the appeal rather than the reasons why the trial court erred in denying his motions for a new trial and judgment notwithstanding the verdict. Accordingly, we will address the assignments of error raised in plaintiffs brief.

Assignments of eiror regarding jury charges and evidence of the rescission hearing.

Plaintiffs first four assignments of error relate to jury charges and testimony regarding the hearing and judgment rendered as a result of plaintiffs attempt to rescind his settlement in the workers’ compensation court.

First, plaintiff argues that the trial court erred in entering the following statement of fact in the jury charge:

That workers’ compensation court ruled that there was no evidence of misrepresentation by the parties, no evidence of fraud or ill practices by counsel, nor a conspiracy between counsel and that judgment testified to (sic) a final judgment.

Plaintiff contends that the trial judge was prohibited from charging the jury on the facts because there was no stipulation regarding this charge. He contends that the trial court further erred and confused the jury by going on to state:

However workers’ compensation — the workers’ compensation court does not have jurisdiction over legal malpractice claims such as has been alleged in this case. These allegations as they relate to legal malpractice are reserved for disposition by this Court and are presented to you the jury to decide on the merits.

He argues that the trial court erred by informing the jury on the judgment of the workers’ compensation court when that judgment was not received into evidence. Plaintiff contends that the trial court erred in mentioning the rescission hearing judgment to the jury because it was irrelevant and was unduly prejudicial. He | Ufurther argues that this violated this Court’s ruling regarding the rescission hearing judgment.

The record indicates that plaintiff filed Writ No 09-C-196 seeking review of the trial court’s ruling denying his motion in limine to exclude evidence of the judgment denying plaintiffs motion to rescind the workers’ compensation settlement. In his writ application, plaintiff argued that this judgment would unfairly taint the jury’s deliberative process and usurp the jury’s role in determining whether legal malpractice occurred in this case. The workers’ compensation court judgment found plaintiffs testimony at the rescission hearing not credible. In its writ disposition, this Court held that the workers’ compensation judge was not an expert on the weight that should be given to plaintiffs testimony. The disposition further stated that this credibility determination “would invite the jury to abdicate its fact-finding role relying instead upon the questionable premise that the expert is in a better position to make such a judgment.” The disposition concluded that the prejudicial impact of this judgment would outweigh its probative value.

At the trial of this matter, reference to the rescission judgment was made several times. The trial judge stated that in light of this Court’s writ disposition, the rescission judgment would not be admitted into evidence. It is apparent from the record that the trial judge and defendant interpreted this Court’s writ disposition to mean that the judgment itself was not admissible, but reference to that proceeding could be made. Indeed, the record indicates that plaintiff introduced the testimony given by plaintiff at the rescission hearing into evidence at the trial in this matter.

In Adams v. Rhodia, Inc., 07-2110 (La.5/21/08), 983 So.2d 798, the Supreme Court stated:

^Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error.
Correlative to the judge’s duty to charge the jury as to the law applicable in a case is a responsibility to require that the jury receives only the correct law. Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Trial courts are given broad discretion in formulating jury instructions and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. The rule of law requiring an appellate court to exercise great restraint before upsetting a jury verdict is based, in part, on respect for the jury determination rendered by citizens chosen from the community who serve a valuable role in the judicial system. We assume a jury will not disregard its sworn duty and be improperly motivated. We assume a jury will render a decision based on the evidence and the totality of the instructions provided by the judge.
However, when a jury is erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if the charges adequately provide the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its deliberation. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice.

Id. at 804 (internal citations omitted).

We find no error in the jury instructions regarding the rescission judgment and the role of the workers’ compensation judge and the jury in this legal malpractice case. Further, a review of the testimony indicates that the jury was aware that plaintiff had tried to rescind the workers’ compensation settlement. Mr. Lorio testified that he filed an answer and represented his client when plaintiff sought to rescind the settlement. Mr. Lorio explained that plaintiff was seeking to rescind his settlement in the workers’ compensation court alleging that there were misrepresentations by his attorneys. Mr. Lorio testified that there was a trial on lathis attempt to rescind and the workers’ compensation court denied it. He further testified that plaintiff filed an appeal from that judgment, but later dismissed the appeal.

Thus, looking at the testimony and record as a whole, we see no error in the complained of jury charges informing the jury that the workers’ compensation court ruled that there was no misrepresentation, fraud or ill practice. The trial court then reminded the jury that the workers’ compensation court did not have jurisdiction to decide the merits of this legal malpractice claim; rather this claim was for the jury to decide. Thus, we find that this jury instruction did not mislead the jury to the extent that it was prevented from dispensing justice. Accordingly, plaintiffs assignments of error related to the jury charges referencing the rescission judgment are without merit.

Plaintiff also argues that the trial court erred in allowing testimony regarding the rescission hearing and further that this testimony violated this Court’s writ disposition in Writ No. 09-C-196. Plaintiff does not cite to any specific testimony in his brief. Rather, he concludes that permitting testimony regarding the rescission hearing was reversible error.

Rule 2-12.4 of the Uniform Rules for the Courts of Appeal states:

The argument on a specification or assignment of error in a brief shall include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error. The court may disregard the argument on that error in the event suitable references to the record is not made.
All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.

Thus, we are unable to rule on this assignment of error since plaintiff does not point out exactly what testimony he is referring to.

l17We could infer, however, that plaintiff is referring to the testimony of Mr. Lorio regarding plaintiffs attempt to rescind his settlement in the workers’ compensation court. The erroneous introduction of evidence is subject to a harmless error analysis.

The effect of an erroneous eviden-tiary ruling is that “[ejrror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected.” La. C.E. art. 103. The notion of “substantial right” as used in Article 103 is analogous to the harmless error principle applicable in both civil and criminal matters. Richardson v. Richardson, 07-0430 (La.App. 4 Cir. 12/28/07), 974 So.2d 761, 771-72.

In this case, the jury was presented with evidence that there were many defenses to plaintiff’s claim for workers’ compensation, including that plaintiff may not have been covered by workers’ compensation insurance and that there was no proof of plaintiffs prior earnings. The jury also heard testimony that the defendants worked to secure a settlement in which plaintiff obtained a lump-sum and was able to purchase a dump truck and, through the use of this truck, was able to earn money. The witnesses explained the process of mediation and how this particular settlement was reached. The testimony indicated that plaintiff actively participated in the mediation process. Thus, even if we were to find that testimony regarding the rescission hearing was wrongly admitted, given the overwhelming testimony regarding the defenses to plaintiffs compensation claim and his participation in the mediation and the settlement, we find that the admission of this testimony had little effect, if any, on plaintiffs substantial rights and therefore was harmless.

11SAssignments of error regarding the exclusion of plaintiff’s expert

The defendants prevailed on a motion in limine excluding the testimony of plaintiffs standard of care expert, Charles Davoli. Plaintiff argues that the trial court erred in excluding this testimony and further argues that the trial court erred in refusing to give his requested jury charge that he did not have a standard of care expert because the trial court ruled no such expert was necessary. Plaintiff argues that while his expert was excluded, the defendants presented the testimony of Mr. Brocato, Mr. Hall and Mr. Lorio, who were de facto experts in that they explained how workers’ compensation cases are handled and that the defendants had done a “great job.”

In order to prevail on a legal malpractice claim, the plaintiff bears the burden of proving: (i) an attorney-client relationship; (ii) the attorney was negligent in his representation of the client; and (iii) that negligence caused the plaintiff loss. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129, 138. Failure to prove one of these elements is fatal to the claim. Id.

Clearly there was an attorney-client relationship between plaintiff and the defendants in this matter. Plaintiff then had to prove that the defendants were negligent in their handling of his workers’ compensation case. In his petition, plaintiff alleged that the defendants were negligent in the handling of his compensation claim in that: (1) defendants failed to obtain approval of the workers’ compensation settlement by the Social Security Administration and/or Medicare, thereby jeopardizing his future entitlement to Medicare; (2) defendants failed to obtain the $30,000 lump-sum payment to which he was entitled pursuant |19to R.S. 23:1221(4)(s)(i); (3) the settlement was inadequate to cover his estimated $160,000 per year costs for medical assistance; and (4) defendants failed to pursue proof of his prior earnings.

We find again that this alleged eviden-tiary ruling is subject to a harmless error analysis. Plaintiff proffered the deposition of his proposed expert, Mr. Davoli, an attorney with many years’ experience in representing clients in workers’ compensation claims. In Ms deposition, Mr. Davoli testified that there was no due diligence in not creating a special needs trust in order to preserve plaintiffs continued Supplemental Security Income eligibility and Medicaid eligibility. He also noted that the custodial medical trust that was set up for plaintiff provided for $32,000 annually, when the life-care plan done by plaintiffs attorney had information that plaintiffs annual medical expenses were $160,000, making the amount of the settlement inadequate. Mr. Davoli testified that there was no evidence that plaintiffs attorneys made a specific demand for the $30,000 benefit available to quadriplegics.

With regard to the failure to obtain approval, there is a report by NuQuest that was introduced by plaintiff which clearly states that plaintiff was not eligible for Social Security or Medicare benefits, and that this settlement did not have to be approved by Social Security and Medicare. Further, plaintiff testified that he was receiving income from Social Security.

With regard to failure to obtain the $30,000 lump-sum payment, there was testimony from Mr. Broeato and Mr. Lorio that this amount was included in the lump-sum payment plaintiff received. Further, Mr. Hall testified that he had inquired as to this benefit because had they been able to obtain it, he would not have had to make a loan to plaintiff during the pendency of the workers’ 12nCompensation proceeding. Moreover, Mr. Lorio testified that had this payment been demanded, his client would have refused to pay it.

With regard to the inadequacy of the amount of payments for medical assistance, there was evidence that plaintiffs treating physician stated that plaintiff did not need 24-hour care. There was also evidence that plaintiff stated at the mediation that the $32,000 annual amount obtained in the settlement was sufficient to pay his family members to care for him. Further, Mr. Lorio testified that he had a life-care plan performed for plaintiff and this report concluded that the $32,000 annual amount was sufficient to pay for plaintiffs medical assistance.

With regard to defendants’ alleged failure to pursue proof of plaintiffs prior earnings, there was evidence presented by plaintiff and defendant that no proof of prior earnings existed. Mr. Lorio testified that he tried to obtain records from plaintiffs alleged prior employee and/or contractors and there were no records.

There is no doubt that plaintiff suffered grave injuries when he fell off of the roof. However, the workers’ compensation defendants were aware of and were willing to pursue possible defenses to plaintiffs workers’ compensation claim. These defenses impacted the amount plaintiff .could receive in compensation for his injury. A plaintiff can have no greater rights against attorneys for the negligent handling of a claim than are available in the underlying claim. Id.

Thus, our review of the record as a whole indicates that any alleged error in excluding the testimony of plaintiffs expert was harmless because there was evidence before the jury that the defendants were not negligent in failing to obtain a settlement that covered plaintiffs need for medical assistance and for failing to structure the settlement in a way to protect plaintiffs eligibility for Social Security and Medicare benefits. Plaintiff himself produced evidence that he was not eligible for Social Security and Medicare benefits and that he continued to receive 12iSupplemental Security Income from Social Security after the settlement. Further, plaintiff presented the testimony of a Private Care representative stating the type and cost of care plaintiff received before the settlement and that the settlement was insufficient to cover the cost of this care. Plaintiff also presented evidence of his life-care plan stating that the cost of his medical assistance care is $160,000 per year and that the $32,000 per year provided for in the settlement was inadequate.

Likewise, we find no error in the trial court’s omission of plaintiffs proposed jury instruction regarding plaintiffs lack of expert testimony on the standard of care. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury. Simmons v. Schumpert Med. Ctr., 45,908 (La.App. 2 Cir. 6/15/11), 71 So.3d 407, 425, writ denied, 11-1592 (La.10/7/11), 71 So.3d 317. The adequacy of the jury instructions that were given must be determined in light of the instructions as a whole. Segura v. State Farm Ins. Co., 94-1428, (La.App. 3 Cir. 5/31/95), 657 So.2d 1047,1050.

The record reveals that the trial judge instructed the jury that plaintiff had to prove that he was damaged, that the defendants were negligent and that defendants’ negligence caused his damage. The judge explained that this evidence had to be proved by a preponderance of the evidence and that the testimony had to show what was sought to be proved was more likely true than not true. The judge instructed the jury that if a lawyer fails to exercise that degree of care, skill and diligence commonly exercised by practicing attorneys, he is liable to his client for damages resulting by that failure. The judge went on to state that the lawyer’s profession requires the exercise of judgment and he is not at fault if his judgment proves in hindsight to have been wrong. Rather, the lawyer is only at fault if he did not use the degree of skill commonly used by practicing lawyers in this type of 122case. Thus, we find that the charges as a whole adequately provide the correct principles of law as applied to the allegations framed in the pleadings and the evidence and that these charges sufficiently guided the jury in its deliberation. Given the evidence that was presented and the jury instructions taken as a whole, we do not find that the omission of plaintiffs requested jury instruction misled the jury to the extent that it was prevented from dispensing justice.

Assignment of error regarding the trial court’s refusal to grant a judgment notwithstanding the verdict in the amount of $30,000

In this assignment of error, plaintiff argues that he is entitled to a judgment notwithstanding the verdict on the claim for $30,000 plaintiff was due under La. R.S. 23:1221(4)(s). Plaintiff contends that no reasonable jury could conclude that defendant’s actions met the standard of care in failing to demand this money.

A motion for judgment notwithstanding the verdict should only be granted if the facts and inferences from the case point so strongly and overwhelmingly in favor of the moving party that no reasonable person could arrive at the jury’s verdict. Meaux v. Hilcorp Energy Co., 09-591 (La.App. 3 Cir. 12/9/09), 26 So.3d 875, 880, writ denied, 2010-0441 La. 4/30/10, 34 So.3d 294.

Our review of the entire record and testimony in this case indicates that the record supports the jury’s finding that defendants were not negligent and did not commit legal malpractice in their representation of plaintiff in his workers’ compensation claim. Specifically with regard to the $30,000 benefit, while it is clear that a written demand was not made for this sum, the testimony indicates that Mr. Bro-cato discussed this benefit with Mr. Lorio. Mr. Lorio testified explicitly that had plaintiffs attorneys demanded this payment, his client would not have paid it because of the numerous defenses to plaintiffs claim, ie., no proof of prior | ^earnings, plaintiff was owner of subcontracting entity and did not have his own compensation coverage, and plaintiff and his employee may have been at fault for causing this accident. Further, Mr. Bro-cato’s testimony indicated that the $30,000 was included in the lump-sum payment plaintiff received in the settlement. Thus, since the record contains a reasonable factual basis for the jury’s determination, plaintiff was not entitled to judgment notwithstanding the verdict.

CONCLUSION

For the foregoing reasons, the judgment of the trial court dismissing plaintiffs suit is hereby affirmed.

AFFIRMED

      . Mr. Willis passed away during this course of this proceeding. His heirs were substituted as parties-plaintiffs. However, Mr. Willis will be referred to as plaintiff in this opinion.

      . La. R.S. 23:1221 (4)(s) provides, in pertinent part:
      (s)(i) In addition to any other benefits to which an injured employee may be entitled under this Chapter, any employee suffering an injury as a result of an accident arising out of and in the course and scope of his employment shall be entitled to a sum of thirty thousand dollars, payable within one year after the date of the injury.

      (iii) Only the following injuries shall be considered injuries for which benefits pursuant to this Subparagraph may be claimed:
      (aa) Paraplegia or quadriplegia or the total anatomical loss of both hands, or both arms, or both feet, or both legs, or both eyes, or one hand and one foot, or any of two thereof; however, functional loss or loss of use shall not constitute anatomical loss.

      . The record reflects that this was the net amount due plaintiff after deducting loans made to plaintiff by Mr. Hall during the course of representation of plaintiff and other expenses.

      . See also Noto v. Noto, 09-1100 (La.App. 5 Cir. 5/11/10), 41 So.3d 1175, 1178-79, wherein the Louisiana Supreme Court has instructed the courts of appeal to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from appellant’s brief that he intended to appeal the merits of the case.

      . When an appellate court denies a writ of review, declining to exercise its power of supervisory jurisdiction, reconsideration of this issue is not barred in an appeal from the final judgment in that case. Goodwin v. Goodwin, 607 So.2d 8 (La.App. 2d Cir.1992). Thus, plaintiff correctly argues that this Court's ruling in Writ No. 09-C-360 finding that the trial court did not abuse its discretion in excluding Mr. Davoli’s testimony does not prohibit the review of this issue on appeal.


text:
    STATE of Louisiana v. Louis BOYD, Jr., et al.
    No. 11-CA-1080.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.
    Harry J. Morel, Jr., District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, LA, for Plaintiff-Appel-lee.
    Louis Boyd, Jr., Oakdale, LA, Defendant/Appellant, In Proper Person.
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   CLARENCE E. McMANUS, Judge.

I STATEMENT OF THE CASE

Plaintiff, Louis Boyd, Jr., was the subject of an investigation by the St. Charles Parish Sheriffs Office regarding his involvement in illegal drug activity. As a result of this investigation, a search warrant for Boyd’s residence was obtained by St. Charles Parish detectives. This search warrant was executed and detectives recovered crack cocaine, drug paraphernalia associated with the distribution of drugs, a driver’s license with Boyd’s name on it, a gun, and bullets. There was also a Ford Ranger truck parked at the residence. Detectives recovered $100.00 in cash from that vehicle. Prior to execution of the search warrant, Boyd was observed leaving the residence in a vehicle. His vehicle was stopped shortly thereafter and a search of his person yielded $2,258.00 in cash. The day before the search warrant was executed, a confidential informant purchased crack cocaine from Boyd using money that had been initialed and photocopied by a St. Charles Parish detective. Two of the twenty dollar bills recovered from Boyd’s person were initialed and had been copied by the detective. Following the execution of the search warrant, Boyd was arrested.

On November 20, 2008, the State of Louisiana filed an Application for Warrant of Seizure for Forfeiture pursuant to LSA-R.S. 40:2603. The State sought seizure of $2,318.00 in cash, crack cocaine, Carisoprodol, a handgun, bullets, a digital scale and a razor blade. On November 24, 2008, Boyd was personally |sserved at the Nelson Coleman Correctional Center with Notice of Pending Forfeiture by Lt. Marlin Shuff of the St. Charles Parish Sheriffs Office. Following receipt of this notice of pending forfeiture, Boyd did not file a claim alleging the property was not subject to seizure.

Thereafter, on February 6, 2009, the State filed an Application for Forfeiture, and attached an affidavit from the assistant district attorney indicating that Boyd had been personally served with the notice of pending forfeiture and more than thirty days had passed without Boyd filing any claims. A Judgment of Forfeiture was rendered on June 22, 2009 and the property was deemed forfeited pursuant to LSA-R.S. 40:2616(A). Boyd did not appeal this judgment.

On September 27, 2010, Boyd filed a Petition to Annul Judgment alleging he was not properly served and had no knowledge of the forfeiture proceedings. On October 8, 2010, the trial court signed Boyd’s petition and order and stated “[tjhis is not a summary proceeding. Once an answer is filed by the State of Louisiana, either party may move to set for trial.”

The State then filed a Motion for Reconsideration of Ex Parte Granting of Annulment of Judgment and Alternative Answer, claiming the trial court’s signature at the end of the petition had the effect of annulling the June 22, 2009 judgment of forfeiture. The State pointed out that the trial court’s signature on Boyd’s petition to annul was below his prayer for relief, which stated “[tjhere be judgment in favor of petitioner, Louis Boyd, Jr., and against the State of Louisiana declaring the judgment rendered on June 22, 2009 Docket No. 68,519 annulled for no appearance and vices of form.” The trial court had added the language concerning either party moving to set the matter for trial once an answer was filed, however, the State was concerned that this still contained a prayer for relief which was signed by the trial court.

LTrial was held on September 16, 2011. The trial court entered judgment in favor of the State of Louisiana on September 23, 2011, dismissing Boyd’s petition to annul the judgment. The trial court found that since Boyd did not make a claim for the seized cash timely after receiving the Notice of Pending Forfeiture, nothing required the State to serve or otherwise notify Boyd of the application for forfeiture. Further, the trial court found that the address Boyd chose to include on his driver’s license, or the address he chose to register his vehicle, does not preclude him from having another residence. At trial, the trial court accepted the testimony of Lt. Marlin Shuff, who stated that he had substantial facts to show that Boyd resided at an East Easy St. address. The trial court found no fraud or ill practice involved in the State’s obtaining the warrant of seizure for forfeiture or judgment of forfeiture.

Boyd now appeals arguing he was not properly served with notice of the pending forfeiture and that the trial court erred by accepting testimony of the State’s witnesses. For the reasons which follow, we affirm the trial court’s judgment.

DISCUSSION

First, Boyd argues he was not properly served with notice of the forfeiture. In his testimony at trial, Boyd admitted he was served with Notice of Pending Forfeiture on November 24, 2008 and he remembered signing for it. Lt. Shuff also testified that he did in fact serve Boyd with this document at the Nelson Coleman Correctional Center. Boyd’s argument on appeal is that he was not served with notice of the actual forfeiture, thus, his due process rights were violated.

LSA-R.S. 40:2608 governs the commencement of forfeiture proceedings and requires the State to serve the Notice of Pending Forfeiture on the owner of the property. That statute further provides that if an address is known, then service or | ^notice should be made by either personal service or certified mail. LSA-R.S. 40:2610 provides that the owner of the property seized may contest the forfeiture and make a claim that the item should not be subject to seizure within thirty days and no extension of time shall be granted. If no such claim is filed by the claimant, the State may proceed with the forfeiture through default proceedings and no further notice to the claimant is required.

In this case, the State did properly commence forfeiture proceedings by requesting that notice of pending forfeiture be served on Boyd at his home address. A copy of the notice, signed by Boyd is included in the record. Thereafter, Boyd failed to contest the forfeiture or file a claim arguing the property was not subject to seizure. Thus, the trial court correctly concluded that Boyd was properly served with the Notice of Pending Forfeiture, failed to contest the forfeiture, and the State properly proceeded to seize the items with no further notice to Boyd.

Additionally, Boyd argues on appeal that the trial court erred in accepting the testimony of the State’s witness at trial, namely, Lt. Shuff. We have reviewed the transcript and find no error in the trial court’s acceptance of this testimony. Boyd did object to Lt. Shuffs testimony concerning service of the Notice of Pending Forfeiture, however, the trial court overruled this objection finding the testimony to be relevant to this matter. We agree with the trial court and find the testimony to be relevant. Thus, the trial court did not err in allowing Lt. Shuffs testimony.

Accordingly, we affirm the trial court’s judgment in favor of the State of Louisiana, dismissing Boyd’s petition to annul judgment.

AFFIRMED