author: PETERS, J. PICKETT, J.,

text:
    Randy FONTENOT, et al. v. PATTERSON INSURANCE, et al. Germaine Brooks, et al. v. City of Lafayette, et al.
    Nos. 06-1624, 06-1625.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 2009.

      Lawrence N. Curtis, Lawrence N. Curtis, Ltd, Lafayette, LA, for Plaintiffs/Appellants/Appellees: Randy Fontenot and Susanne Fontenot.
    Rickey W. Miniex, Clyde R. Simien, Todd M. Swartzendruber, Holli K. Yandle, Simien & Miniex, Lafayette, LA, for Defendant/Appellee/Appellant: Lafayette City-Parish Consolidated Government.
    Colleen McDaniel, Assistant Attorney General, Louisiana Department of Justice, Division of Risk Litigation, Lafayette, LA, for Defendant/Appellee/Appellant: The State of Louisiana Through The Department of Transportation and Development.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

11 These consolidated actions are again before us, this time on remand from the supreme court. When these matters were first before us, we attempted to reconcile conflicting decisions rendered by the jury and the trial court in a bifurcated trial by performing a de novo review of the record. Fontenot v. Patterson Ins. Co., 06-1624, 06-1625 (La.App. 3 Cir. 12/5/07), 972 So.2d 401. One of the defendants, the State of Louisiana, Department of Transportation and Development (DOTD), filed an application for supervisory writs with the supreme court questioning whether this court applied the proper standard of review in reaching our decision. In remanding the matter to this court, the supreme court did not reach the issue raised by DOTD. Instead, it concluded that the issues and parties remaining at the time of the trial on the merits were so aligned that a bifurcated trial was improper. Thus, on remand, the supreme court ordered that this court review only the jury’s decision, and do so by applying the manifest error standard of review. Fontenot v. Patterson Ins. Co., 08-0414 (La.12/12/08), 997 So.2d 529. We have complied with the instructions of the supreme court and, in doing so, conclude that the jury manifestly erred in its allocation of fault; reallocate fault in causing the accident; affirm the jury’s quantum award as amended by the trial court’s judgment notwithstanding the verdict; render judgment in accordance with these percentages of fault; affirm the judgment awarding legal interest, as amended; and recast the judgment for costs.

DISCUSSION OF THE RECORD

As has been stated in the opinions previously rendered, this litigation arises from an automobile accident that occurred at the intersection of Morgan and Main Streets in Broussard, Louisiana, a few moments after 11:00 p.m. on March 23, 2001. At that time, a vehicle driven by Germaine Brooks and occupied by Charlotte Phillips ^entered the intersection and collided with a vehicle driven by Randy Fontenot and owned by the Lafayette City-Parish Consolidated Government (City-Parish). Both vehicles sustained significant damage, both drivers sustained severe personal injuries, and Ms. Phillips died as a result of the injuries she sustained in the accident.

At the time of the accident, Randy Fon-tenot, a City-Parish policeman, was proceeding east on Main Street in the direction of the Morgan Street intersection. Germaine Brooks was driving south on Morgan Street, approaching the same intersection. Both Main and Morgan Streets are part of the Louisiana State Highway System. A sequencing traffic light designed, constructed, and maintained by DOTD controls the flow of traffic through the intersection with the standard red-yellow-green sequenced traffic signals operating between 5:00 a.m. and 11:00 p.m. each day. At 11:00 p.m., the traffic signal automatically switches to a flashing mode with the yellow light flashing for Main Street, the favored street, with the red light flashing for Morgan Street. At the time of the accident, the light had switched to the flashing mode.

Mr. Brooks’ vision in the direction of Mr. Fontenot’s oncoming vehicle was impaired by a four-story brick building that houses a library and is situated on the northwest corner of the intersection. Approximately one year before the accident, DOTD had taken the steps to overlay and widen the intersection. This activity included the addition of a left-turning lane in all four approaches, which were further controlled by a stop bar on the pavement. However, DOTD failed to paint a stop bar on any of the other approaching lanes.

As has been set out in the prior opinions, the suits arising from this accident resulted in a number of combinations of plaintiffs and defendants through the | ^principal demands as well as the ancillary demands. However, when the trial on the merits occurred, the only claims left were those of the Fontenots and the City-Parish against Mr. Brooks, the Louisiana Insurance Guaranty Association (LIGA), and DOTD. At trial, the claims of the Fontenots were decided by a jury and the claims of the City-Parish were decided by the trial court.

Liability was the main factual dispute at trial. The jury returned a verdict assessing Mr. Brooks with ninety percent of the fault causing the accident and assessing Mr. Fontenot with the remaining ten percent. The jury then awarded Mr. Fon-tenot the following damage awards:

Past medical expenses — $255,000.00
Past wages loss — $176,512.00
Lost future wages and earning capacity — $250,000.00

Additionally, the jury awarded Mrs. Fonte-not $10,000.00 and the Fontenots’ minor daughter $5,000.00 for loss of consortium.

In considering the City-Parish’s intervention claim against the same three defendants, the trial court found that the City-Parish was entitled to recover 14$19,994.87 for the property damage to its vehicle, but apportioned fault for that damage equally between Mr. Brooks and DOTD. Thus, the jury found no fault on the part of DOTD and the trial court found no fault on the part of Mr. Fontenot.

The Fontenots challenged the jury’s findings by filing a judgment notwithstanding the verdict (JNOV), or in the alternative a motion for a new trial. This pleading addressed the jury’s allocation of fault and its failure to award general damages. The trial court granted the JNOV as to the general damages complaint, awarding Mr. Fontenot $500,000.00 in general damages, but denied the request for reallocation of fault. Thereafter, the trial court executed three separate judgments-one with regard to its judgment on the City-Parish’s claim, and two with regard to the jury verdict and its subsequent grant of the JNOV. In separate appeals, the Fontenots, the City-Parish, and DOTD appealed the allocation of fault. Additionally, in its appeal, DOTD claimed that the general damage award granted Mr. Fonte-not through the JNOV was excessive.

OPINION

When first considered by us, all the litigants presented this case as a bifurcated trial wherein the jury and trial court had rendered conflicting verdicts. Thus, our- first inquiry was the standard of review to be applied. We recognized the unsettled nature of the law in this area and noted that our own circuit had tried different approaches in fulfilling our review obligations. See Hebert v. Rapides Parish Police Jury, 05-471 (La.App. 3 Cir. 7/12/06), 934 So.2d 912, rev’d on other grounds, 06-2001, 06-2164 (La.4/11/07), 974 So.2d 635, and McDaniel v. Carencro Lions Club, 05-1013 (La.App. 3 Cir. 7/12/06), 934 So.2d 945, writ denied, 06-1998 (La.11/3/06), 940 [,So.2d 671. We chose to use the de novo approach as applied in Hebert. In doing so, we affirmed the jury’s award of damages as amended by the trial court’s grant of the JNOV and reversed the jury’s allocation of fault and reallocated fault in the same percentages reached by the trial court: fifty percent to DOTD and fifty percent to Mr. Brooks.

In its remand, the supreme court instructed us to ignore the trial court judgment on the City-Parish’s ancillary demand, to consider only the apportionment of fault as determined by the jury, and to consider that determination under the manifest error standard of review. It reached its decision by noting that, by the time the matter came to trial, all claims against the City-Parish had been resolved, and thus, all remaining issues should have been tried by jury.

Allocation of Fault

As previously stated, the jury assessed ninety percent of the fault in causing the accident to Mr. Brooks and assessed the remaining ten percent to Mr. Fontenot. The trial court declined to change this assessment when presented with the opportunity through the motion for JNOV, but obviously disagreed with the determination, given its separate judgment on the issue. However, as instructed by the supreme court, we will not consider the trial court’s judgment, but only that of the jury. In considering the jury verdict under the manifest error scope of review, we are mindful of the requirement that credibility determinations are for the trier of fact, and that “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

| sFault in causing an accident is determined under the five-step duty-risk analysis which we set forth in our original opinion as follows:

This is a five-step process which requires that a party asserting fault on another establish (1) that the party whose fault is at issue had a duty to conform his conduct to a specific standard, (2) that the party’s conduct failed to conform to the appropriate standard, (3) that the party’s conduct was a cause-in-fact of the injuries at issue, (4) that the party’s substandard conduct was a legal cause of the injuries at issue, and (5) that there were actual damages. Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791. A party asserting comparative fault bears the burden of proof by a preponderance of the evidence that the other party’s fault was a cause-in-fact of the damage complained of. Watson v. Brazeel, 36,499 (La.App. 2 Cir. 12/18/02), 833 So.2d 1276, writ denied, 03-0217 (La.04/04/03), 840 So.2d 1215. The cause-in-fact element generally involves a “but for” inquiry which questions whether or not the injury would have occurred “but for” the defendant’s substandard conduct. Petre v. State ex rel. Dept. of Transp. & Dev., 00-00545 (La.App. 3 Cir. 12/29/00), 775 So.2d 1252, aff'd 01-0876 (La.4/3/02), 817 So.2d 1107. Additionally, fault in a vehicular collision case is determined by judging the conduct of each motorist under the facts and circumstances of each particular case. Matthews v. Arkla Lubricants Inc., 32,121 (La.App. 2 Cir. 8/18/99), 740 So.2d 787.

Fontenot, 972 So.2d at 409.

In considering the first of the five steps, we noted in our original opinion that “[bjecause Mr. Fontenot was facing the flashing yellow light, he was authorized to proceed through the intersection, but he had a duty to do so ‘with caution.’ La.R.S. 32:234(A)(2).” Id. at 410. Mr. Brooks, we concluded, “had a duty to stop before entering the intersection and yield the right of way to traffic on Main Street. La.R.S. 32:234(A)(1).” Id. at 410. DOTD, we concluded, had a duty to “maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence.” [Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791] at 799. Id. at 413. Nothing in the supreme court opinion would suggest that these legal duties were not owed to the respective parties involved in this litigation, and we now reaffirm those determinations.

|7The record contains no direct eyewitness account of the accident. Ms. Phillips died of her injuries, Mr. Brooks did not testify, and Mr. Fontenot could remember nothing about the accident because of an amnesic disorder arising from the injuries he sustained. The second-hand testimony of the officer who questioned Mr. Brooks on the night of the accident revealed that Mr. Brooks told him that after stopping at the red flashing light on Morgan Street, and seeing no vehicles approaching on Main Street, he pulled into the intersection where he was struck by Mr. Fontenot’s vehicle. The remainder of the pertinent testimony was presented by expert witnesses.

With regard to Mr. Fontenot’s fault, DOTD provided the testimony of Dr. Andrew McPhate, an expert in mechanical engineering and vehicle dynamics. Dr. McPhate testified that while he did not fully reconstruct the accident, based on the information he gathered, he concluded that Mr. Fontenot applied his brakes before impact, and was traveling fifty-six miles per hour at the time of impact.

“In evaluating the evidence, the trier of fact should accept as true the uncontradicted testimony of a witness ... where the record indicates no sound reason for its rejection.” Robertson v. Scanio Produce & Inst. Foods, Inc., 449 So.2d 459, 462 (La.1984). For the purposes of this review, we accept this speed estimation as true. However, speed in excess of the posted speed limit by a motorist involved in an accident does not in and of itself require a finding of liability. Loveday v. Travelers Ins. Co., 585 So.2d 597 (La.App. 3 Cir.), writ denied 590 So.2d 65 (La.1991).

|sIn this matter, DOTD did establish that Mr. Fontenot was speeding, but did not establish the excessive speed to be a cause-in-fact of the accident. As we stated in our original opinion,

While Dr. McPhate testified to speed at impact, he offered no opinion that would connect the vehicle’s speed to the cause of the accident. Thus, DOTD failed to establish the “but for” portion of the cause-in-fact test. That is to say, DOTD offered no evidence to establish that, but for Mr. Fontenot’s excess speed the accident would not have happened. While such a scenario is possible, there was no evidence presented to establish that possibility as a fact, or even a probability. To reach that conclusion based solely on the speed of the vehicles would be mere speculation on our part. Thus, we find that DOTD failed to meet its initial burden of proof to show that Mr. Fontenot’s actions contributed to the collision.

Fontenot, 972 So.2d at 410.

Whether we apply de novo principles or those of a manifest error analysis, the conclusion is the same. DOTD failed to establish that Mr. Fontenot’s breach of his duty to travel within the speed limit was a cause-in-fact of the accident sued upon. Thus, we find that the jury was manifestly erroneous in assessing Mr. Fontenot with any percentage of fault.

We do, however, find that the jury did not err in assessing Mr. Brooks with fault in causing the accident. He clearly breached his duty to yield the right of way to traffic on Main Street even if he stopped at the flashing red light. As we explained in our original opinion,

Because the intersection did not contain a cross-walk or a stop bar, Mr. Brooks had a duty to stop at a point where he had a view of approaching traffic on Main Street, and to not proceed if he observed any traffic approaching on Main Street that would constitute an immediate hazard if he attempted to enter the intersection. [Loveday v. Travelers Ins. Co., 585 So.2d 597 (La. App. 3 Cir. 1991)]; La.R.S. 32:123(B). As stated in Toston v. Pardon, 874 So.2d 791, 802,
[Shopping is only half the duty, the other half is not to proceed until the determining that the way is clear. Guillot v. Valley Forge Ins. Co., 99-1044, p. 4 (La.App. 3 Cir. 12/8/99), 753 So.2d 891, 894. The second duty is heavier and requires an even greater degree of care when the intersection is blind, or partially obstructed. Continental Ins. Co. v. Duthu, 235 So.2d 182, 186 (La.App. 4 Cir.1970). A driver entering a superior highway where his view is obstructed is under a duty to proceed with extraordinary caution. Taylor v. State, 431 So.2d 876, 879(La.App. 2 Cir.1983).
As this court recognized in McCauley v. LaFleur, 213 So.2d 176, 179 (La.App. 3 Cir.1968), “[t]o stop and then proceed in the immediate path of oncoming vehicles constitutes negligence.”

Fontenot, 972 So.2d at 410-11.

The finding of fault on the part of Mr. Brooks is clearly supported by the expert testimony presented to the trial court. Dr. McPhate described the library’s location as creating a “blind intersection.” Accepting the statement he gave the investigating officer as true, it is obvious that Mr. Brooks stopped at a point where the library building obstructed his view. Otherwise, he would have seen Mr. Fontenot’s oncoming vehicle and would not have pulled into the intersection, and the accident would not have happened. The jury was not manifestly erroneous in concluding that Mr. Brooks’ negligence was a cause-in-fact of the accident.

In our prior opinion, we stated the following concerning proof of DOTD’s negligence:

In a tort action against DOTD, whether based on strict liability or negligence, the plaintiff must show: (1) the property which caused the damage was in the custody of the DOTD, (2) the property was defective because it had a condition that created an unreasonable risk of harm, (3) DOTD had actual or constructive notice of the risk, and (4) the defect in the property was a cause-in-fact of the plaintiffs injuries. Toston, 874 So.2d 791. The analysis under either theory, strict liability or negligence, is the same. Id. DOTD’s duty is to “maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence.” Id. at 799. To that end, the Imdesign of a controlled intersection must “not present an unreasonable risk of harm to motorists.” Id.

Fontenot, 972 So.2d at 413.

It is undisputed that DOTD had custody and control of the intersection. Thus, that element of proof is not at issue. As to the remaining issues, the testimony, primarily in the form of expert testimony, is conflicting.-

Mr. Burnham testified that at least four defects caused the intersection to be an unreasonable risk of harm to motorists. He first suggested that proper engineering design of the intersection would require a 250 foot sight distance for traffic on Morgan Street looking in the direction of Mr. Fontenot’s approaching vehicle, and that the failure to use a stop bar in the traffic lane left Mr. Brooks in the dark as to the appropriate stopping point. If he choose the wrong spot, he could limit his sight distance to as little as one hundred feet, thereby leaving him an inadequate distance in which to make a decision to proceed.

Next, Mr. Burnham testified that the absence of the stop bar, particularly at night, was in and of itself a defect. The stop bar was, he suggested, not only required by DOTD’s own PM-01 standard plan, but also by the Manual on Uniform Traffic Control Devices (MUTCD) promulgated by the National Committee for Uniform Traffic Control Devices (NCUTCD). The stop bar’s primary purpose, according to Mr. Burnham, is to give the approaching motorist assistance in locating the optimum point for making the decision to safely traverse the favored roadway. He could find no justification for not providing the stop bars in the approaching lanes of this intersection, and that failure created a hazardous condition at this intersection.

|nMr. Burnham also noted that DOTD had not performed a traffic engineering update of this intersection since installation of the traffic signal over twenty years before the accident. He suggested that such a study would have included a review of the accident patterns, the type of traffic at the intersection, and the nature of the traffic both day and night. Specifically, such a study would have revealed the eighteen collision-type accidents that had occurred at this intersection prior to the accident at issue in this litigation, eleven of which involved traffic approaching from the same direction as Mr. Fontenot. Knowledge of such events would have emphasized to DOTD’s planning engineers the need for the stop bars.

Finally, Mr. Burnham asserted that the intersection would have been made much safer had DOTD not chosen to program the traffic signal to switch to flashing signals at 11:00 p.m. each night. According to Mr. Burnham, a much safer method would had been to maintain the light on a red-yellow-green sequence twenty-four hours per day, but on an actuated basis. That is to say, in the late-night hours, the light would remain on green for Main Street unless and until a vehicle approached on Morgan Street. Then and only then would the signal cycle to green on Morgan Street.

Dr. Jack Humphries, DOTD’s expert in traffic engineering and highway design, disagreed with Mr. Burnham concerning the importance of the stop bar on the through street. His solution was to leave each individual driver with the obligation to select a point which did not encroach on Main Street yet would allow unrestricted vision on Main Street. Concerning Mr. Burnham’s suggestion that the signal light not be cycled to a flashing light late at night, he testified that his research revealed that problems as described by Mr. Burnham have not been prevalent at intersections involving streets of lesser classifications than arterial, and in this case only one, Main 112Street, was an arterial. Also, he observed that the MUTCD does not prohibit flashing lights, especially for late-night, low-volume traffic, and that the use of such signals is a matter of engineering judgment. However, he acknowledged that his one visit to the intersection occurred in the daylight hours, that the pictures he relied upon in his study were also taken in the daytime, and that they were taken on the opposite side of the intersection from the direction of travel of the Brooks car. His ultimate opinion was that Mr. Brooks’ failure to comply with his duty to stop at a point where he could see approaching traffic was the sole cause of the accident.

The actual or constructive notice requirement was satisfied by the testimony of DOTD employees who work in the district where the intersection is located. Michael Moss, the district maintenance engineer, and Charles Moran, the district maintenance superintendent, both testified concerning the intersection inspection procedure, and both established that DOTD inspected the intersection once every two weeks. However, according to the two men, the inspection was for the limited purpose of determining what, if anything, needed to be repaired. Richard Savoie, a project development engineer in DOTD’s road design section, testified that when the widening and overlay project was completed in 2000, stop bars were placed only in the turning lanes of the four approaches, and at a distance away from the intersection itself. He explained that the purpose of a stop bar in the turning lane is to establish the point at which a vehicle should stop in order to avoid being “clipped” by a vehicle coming from another direction and turning left onto the street. It is not to be used as a stopping guide for through traffic.

With regard to the intersection construction project, the record reflects that DOTD maintains a set of standard plans referred to as the PM-01 plan which calls for [] ¡¡stop bars in the through lanes as well as the turning lanes in any given project. However, the design engineer for a particular intersection can choose to deviate from this standard plan, and his or her decision is controlling. In the case of the Main Street/Morgan Street intersection, the design engineer chose not to require stop bars in the through lanes. Unfortunately, the record is silent concerning the reason for this decision.

When we previously considered the fault of DOTD under the de novo standard of review, we stated the following:

Based on the facts regarding this intersection and Mr. Burnham’s reasoning, which we accept in preference to that of any other expert testifying, we find that the defective condition of the intersection and its signing created an unreasonably dangerous condition and was a cause-in-fact of the accident. Dr. McPhate and Mr. Burnham both testified that at night the library building in the northwest corner of the intersection presented an obstruction to view to traffic entering the intersection on Morgan Street; Mr. Burnham opined that the sight obstruction of the library building at night, together with the absence of a stop bar on the Morgan Street through lane, presented a motorist proceeding south on Morgan street with no guidance on the optimal stopping location. Furthermore, the presence of the stop bar in the turning lane was deceptive because it could mislead a driver into thinking that was a safe stopping location, whereas it was not. Mr. Burnham made a connection between the number of accidents at the intersection and the unexplained disregard of DOTD’s own standard requiring stop bars in all approaches. Dr. Humphries’s testimony did not detract from Mr. Burnman’s well reasoned opinion, as Dr. Humphries’s opinion was conclusory and without reasoned foundation.
We also find more convincing Mr. Burnham’s testimony regarding the deficiency in the traffic signal. His documented explanation of the risk in converting to a flashing mode at 11:00 p.m. is reasonable, as were his alternatives to this action. On the other hand, DOTD’s evidence focused primarily on its attention to proper maintenance of the signals-a nonissue in this litigation. At best, Dr. Humphries established that the installation of a flashing light was not itself 'a violation of AASHTO or MUTCD minimum standards. He did not address the effect of the flashing system at this particular intersection.
| hDOTD also argues that it proved it had discharged its duty of care to the motoring public because the evidence at trial established that the intersection at issue met the AASHTO and MUTCD standards or requirements. DOTD argues that because the intersection met these standards or requirements, it is entitled to the presumption of La.R.S. 32:235(E) that it is without fault in causing the accident. We disagree that DOTD is entitled to the presumption provided in that statute. Louisiana Revised Statutes 32:235(E) provides that if there exists proof that, at the time of the accident, DOTD was “in compliance with the provisions of the department’s traffic control devices manual shall be prima facie evidence of discharge by [DOTD] of its obligations to the motoring public.” Simply stated, the evidence establishes that DOTD was not in compliance with its own traffic control devices manual in that it failed to install stop bars for the through lands.
We also find that DOTD had knowledge of the possible defects in the intersection. In Hammons v. City of Tallulah, 30,091 (La.App. 2 Cir. 12/10/97), 705 So.2d 276, writ denied, 98-407 (La.3/27/98), 716 So.2d 892 and 98-440 (La.3/27/98), 716 So.2d 894, constructive knowledge of a hazardous condition sufficient to allow recovery against a public body was based on facts demonstrating that the defective condition had existed for such a period of time that it should have been discovered and repaired if the public body had exercised reasonable care. In the present case the blind intersection was as old as the library building and the traffic light had been present for more than twenty years. Additionally, the accident records of the Town of Broussard demonstrated that of the eighteen accidents occurring at that intersection, more than half involved traffic traveling east on Main. The long-term existence of the hazardous conditions and the accident history at this intersection was sufficient to establish that the DOTD had actual or constructive notice that it was not in compliance with its own standards. See Cole v. State ex rel. Dept. of Transp. & Dev., 99-912 (La.App. 3 Cir. 12/22/99), 755 So.2d 315, writ denied, 00-199 (La.4/7/00) 759 So.2d 766. We have no hesitancy finding that DOTD knew or should have known that the intersection posed an unreasonable risk.

Fontenot, 972 So.2d at 413-14.

When we reached this conclusion, we were applying the de novo standard of review. In applying the manifest error standard of review, we reach the same conclusion. That is to say, while recognizing the conflicts in the testimony of the experts testifying for the Fontenots and DOTD, we do not find that there are different, yet permissible, views of the evidence; and we find that the jury’s conclusion that DOTD | ]Swas not at fault was not a reasonable one. See Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

Apportionment of Fault

Having concluded that the accident at issue was caused by the negligence or fault of both Mr. Brooks and DOTD, we turn to the apportionment of fault between these two parties. The ruling case law on this issue is Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985), wherein the supreme court identified various factors that may influence the degree of fault assigned, including:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

Watson, 469 So.2d at 974. However, if we find manifest error in the jury’s apportionment of fault, we may adjust the award “only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion.” Clement v. Frey, 95-1119, 95-1163, pp. 7-8, (La.1/16/96), 666 So.2d 607, 611.

Applying the Watson factors and following the guidance required by Clement, we reduce Mr. Brooks’ fault to sixty percent and assign the remaining forty percent to DOTD.

Damages

With regard to the trial court award of general damages, we reviewed that issue previously with the following language:

On appeal DOTD questions only the amount of general damages awarded to Mr. Fontenot. Specifically, DOTD asserts that the trial court “committed manifest error by amending the jury verdict by JNOV to add |ir,$500,000 in general damages.” This assertion is premised on the argument that the trial court award was an additur and not a JNOV.
An additur may be entered “only if the issue of quantum is clearly and fairly separable from other issues in the case.” La.Code. Civ.P. art 1814. In its brief, DOTD declares that “the parties agreed for the judge to grant an additur in lieu of a new trial and to reform the jury verdict accordingly, since the damage issue was separable from liability issues.” Then, observing that “additur only allows reformation of the award to the lowest reasonable amount,” DOTD sums up its briefed argument in support of this assignment with the contention that the $500,000.00 JNOV was excessive.
We have carefully examined the proceedings in relation to the motion for a JNOV, or in the alternative a motion for a new trial, and we find nothing in the record to suggest either an agreement between the parties or DOTD’s consent to convert the motions to an additur. Mr. Fontenot’s motion was for a JNOV, and the judgment rendered by the court was plainly and simply a JNOV. Inasmuch as DOTD has made no factual argument and no valid legal argument that the JNOV was improperly granted or that it was excessive, there is nothing further for us to review concerning this assignment of error. The assignment has no merit.

Fontenot, 972 So.2d at 415.

Nothing before us suggests that we erred in this assessment. Therefore, we will not revisit this issue.

DISPOSITION

For the foregoing reasons, we find manifest error in the jury’s allocation of fault, reverse its allocation, and reallocate fault in causing the accident by assessing Ger-maine Brooks with sixty percent of fault in causing the accident sued upon and assessing the State of Louisiana, Department of Transportation and Development with the remaining forty percent. We affirm the jury’s quantum award as amended by the trial court’s grant of the judgment notwithstanding the verdict in all respects. Accordingly, we render judgment in favor of Randy and Susanne Fontenot, individually and on behalf of their minor daughter, against the State of Louisiana, | ^Department of Transportation and Development, for forty percent of all damages awarded, and in favor of Randy and Susanne Fontenot, individually and on behalf of their minor daughter, against Germaine Brooks and Louisiana Insurance Guaranty Association for sixty percent of all damages awarded. We affirm the judgment awarding legal interest according to law but providing that Louisiana Insurance Guaranty Association is responsible for legal interest on its obligation only from March 17, 2003. We recast the judgment for costs, ordering that the State of Louisiana, Department of Transportation; Ger-maine Brooks; and Louisiana Insurance Guaranty Association shall be responsible for court costs, including cost of this appeal, in proportion to their fault. Pursuant to the requirement of La.R.S. 13:5112(A), we set the forty percent share of costs assessed to the State of Louisiana, Department of Transportation and Development in a monetary amount, $21,882.31 in lower court costs and $6,709.35 in appellate costs.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

PICKETT, J., Dissents and Assigns Written Reasons.

PICKETT, J.,

dissenting.

_J_¡On remand, the supreme court has instructed us to review the jury’s verdict using the manifest error standard of review. That standard of review was set forth very clearly in Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989) (citations and footnote omitted):

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous— clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.
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 is said. Where documents or objective evidence so contradict the | awitness’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 factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

When we originally heard this case, I explained in my dissent that the majority was wrong in determining that the jury erred in finding that Mr. Fontenot was not at fault. My view has not changed. I continue to believe that the jury was not manifestly erroneous in setting Mr. Fonte-not’s percentage of fault at 10%. I agree with the statement in Loveday v. Travelers Insurance Co., 585 So.2d 597 (La.App. 3 Cir.), writ denied, 590 So.2d 65 (La.1991), that driving in excess of the posted speed limit does not require a finding of liability. However, I believe that the jury was not clearly wrong in its determination that driving 21 miles per hour over the posted speed limit at night when approaching a flashing caution light contributed to the accident.

I also believe that the jury’s determination that the state was not liable is not manifestly erroneous. The jury heard two permissible views of the evidence, and found in favor of DOTD. I find that the jury’s determination was reasonable, and I would not disturb the jury’s allocation of fault. For these reasons, I respectfully dissent from the majority’s finding of manifest error, its re-allocation of fault, and the distribution of costs.

      . The City-Parish had, through an intervention in the Fontenots' suit, sought recovery for medical expenses and workers' compensation benefits paid to Mr. Fontenot and for the damage to the vehicle driven by Mr. Fontenot. However, only the vehicle damage issue is before us.

      . LIGA was substituted for Mr. Brooks’ insolvent insurer pursuant to La.R.S. 22:1375-1394, the Louisiana Insurance Guaranty Association Law.

      . The parties stipulated to the amount of damage to the vehicle driven by Mr. Fontenot. Thus, only the degree of fault of the parties was at issue.

      . The extent of Randy Fontenot's personal injuries was not seriously disputed. In reasons for judgment dated July 13, 2005, the trial judge described Mr. Fontenot's injuries as "multiple injuries, including a right anide fracture with tendon avulsion, right heel fracture, right patella fracture, fractures of the right hand, compression fractures of the thoracic spinal vertebrae, right lower leg fracture, three fractured ribs, lung contusion, cardiac contusion, facial lacerations and laceration of the spleen.” The trial court further found that "Mr. Fontenot was in coma for several weeks. He had a number of surgeries to repair his injuries and was treated for post traumatic stress disorder, anxiety, neurosis and depression.”

      . The City-Parish had sought recovery for medical expenses and workers’ compensation weekly benefits paid to Mr. Fontenot. However, that part of the judgment is not before us on appeal.

      . The speed limit for traffic on both streets at the intersection was thirty-five miles per hour.

      . Louisiana Revised Statutes 32:42 does allow a police officer to violate the speed limit under certain limited circumstances. However, the facts before us does not grant that privilege to Mr. Fontenot in this case.

       The stop bar is referred to as a "limit line” in La.R.S. 32:234(A)(1).

      . Mr. Burnham served on the NCUTCD and was one of the contributors to the development of the MUTCD. He also served on committees of the American Association of State Highway and Transportation Officials (AASHTO) which addressed traffic control and safety standards.


source: Caselaw Access Project

license: Public Domain

text:
    Germaine BROOKS, et al. v. CITY OF LAFAYETTE, et al. Randy Fontenot, et al. v. Patterson Insurance, et al.
    Nos. 06-1625, 06-1624.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 2009.
    Lawrence N. Curtis, Lawrence N. Curtis, Ltd., Lafayette, LA, for Plaintiffs/Appellants, Randy Fontenot and Susanne Fontenot.
    Rickey W. Miniex, Clyde R. Simien, Todd M. Swartzendruber, Holli K. Yandle, Simien & Miniex, Lafayette, LA, for Defendant/Appellee/Appellant, Lafayette City-Parish Consolidated Government.
    Colleen McDaniel, Assistant Attorney General, Louisiana Department of Justice Division of Risk Litigation, Lafayette, LA, for Defendant/Appellee, The State of Louisiana Through The Department of Transportation and Development.

      Court composed of Chief Judge ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

|, For the reasons assigned in Fontenot v. Patterson Insurance Co., 06-1624 (La. App. 3 Cir. 2/18/09), 5 So.Sd 954, on remand from the Louisiana Supreme Court, we amend the third-party judgment in favor of the Lafayette City-Parish Consolidated Government and against Germaine Brooks and the State of Louisiana, Department of Transportation and Development to reflect that Germaine Brooks is assessed with sixty percent of all damages awarded, and that the State of Louisiana, Department of Transportation and Development is assessed with the remaining forty percent. We order that Germaine Brooks and the State of Louisiana, Department of Transportation and Development shall be responsible for court costs, including the cost of this appeal, in proportion to their fault. Pursuant to the requirement of La.R.S.13:5112(A), we set the forty percent share of costs assessed to the State of Louisiana, Department of Transportation and Development in a monetary amount, $297.49 in lower court costs and $3,354.67 in appellate costs.

AFFIRMED AS AMENDED.

PICKETT, J., dissents and assigns written reasons.

PICKETT, J.,

dissenting.

_J_¡For the reasons assigned in my dissent in Fontenot v. Patterson Insurance Co., 06-1624 (La.App. 3 Cir. 2/18/09), 5 So.3d 954, on remand from the Louisiana Supreme Court, I dissent from the majority’s allocation of fault on the third party demand. The supreme court has ordered this court to apply the percentages of fault determined after a manifest error review of the jury’s verdict to the stipulated damages of the Lafayette City-Parish Consolidated Government in its third-party demand. In accordance with the jury verdict, I would allocate 90% of the fault to Mr. Brooks and 10% to Mr. Fon-tenot.


author: SAUNDERS, Judge. COOKS, J.,

text:
    Tate and April VANDER v. SAFEWAY INS. CO. OF LA.
    No. CA 2008-888.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 25, 2009.

      Cris Rader Jackson, Jackson & McPherson, L.L.C., New Orleans, LA, for Defendant/Appellee: Centrix Funds Series, CLPS.
    Melissa Faye Doise, Borne & Wilkes, Lafayette, LA, for Defendant/Appellee: Safeway Ins. Co. of LA.
    Gregory P. Marceaux, Marceaux Law Firm, L.L.C., Lake Charles, LA, for Plaintiffs/Appellants: Tate Vander and April Vander.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   SAUNDERS, Judge.

_JjThis is a concursus proceeding. The owners of a vehicle filed suit against their insurer for failure to satisfactorily pay for the property damage to their vehicle. A settlement was reached, but when the checks were issued, they included the name of a secured creditor who had loaned the vehicle’s owners the money to purchase the vehicle under an installment contract. The attorney for the vehicle’s owners returned the checks to the insurance company, demanding that the creditor’s name be removed from them.

The insurance company responded by depositing the settlement proceeds with the registry of the court and filing a con-cursus proceeding naming the vehicle’s owners, their attorney, and the secured creditor as defendants. The vehicle’s owners and their attorney filed a motion to withdraw funds from the registry of the court. After a hearing on the motion, the trial court found that the proceeds should go to the secured creditor. All three party defendants have appealed, each alleging one assignment of error.

We find that the trial court failed to recognize the special privilege granted to the attorney for its fees and expenses under La.R.S. 37:218. As such, we reverse the trial court’s judgment and render that the attorney is first to be paid its fees and expenses as per its contract with the vehicle’s owners. The remainder of the proceeds are to be paid to the secured creditor. Further, we award, the secured creditor attorney’s fees as allowed for under its contract with the vehicle’s owners in the amount of $1,000.00 for work done at the trial level and $1,000.00 for work done on the appellate level.

FACTS AND PROCEDURAL HISTORY:

The facts of this case are not in dispute. Tate and April Vander (the Vanders) [2are the owners of a 2004 Dodge pick-up truck. The Vanders had a policy of automobile liability insurance issued by Safeway Insurance Company of Louisiana (Safeway). The policy also included comprehensive and collision insurance.

Centrix Funds Series CLPS (Centrix) is the holder and owner of a retail installment contract, executed by the Vanders, dated March 31, 2005, in the amount of $30,445.20 used for the purchase of the 2004 Dodge pick-up truck. Centrix duly perfected its security interest in the vehicle.

On or about September 4, 2005, the truck was allegedly stolen from the Van-ders’ home. The truck was found in a creek bed with the interior of the truck having been burned. On or about October 17, 2005, after returning home from being evacuated from Hurricane Rita, Mr. Van-der discovered that his vehicle was not operating properly and, after having it inspected, was advised that sand and gravel were found in the oil pan.

The Vanders made a claim against Safeway for what they believed to be the full amount of property damages, inclusive of both the fire damage and the engine damage. Safeway refused to pay for the engine damage, contending that they only owed $2,804.87 for the fire damage.

As a result of this dispute, the Vanders hired the Marceaux Law Firm (Marceaux) to represent them in their dispute with Safeway. The contract between the Van-ders and Marceaux stated that the attorney’s fees for representation would be one-third (l/3rd) of all amounts recovered. Further, the contract included an agreement that, should recovery be made, the Vanders would be personally obligated to refund Marceaux costs and expenses associated with the matter.

The Vanders, with representation by Marceaux, filed suit against Safeway. The 13day before trial, the Vanders settled the claim for a total of $9,108.40. The proceeds were forwarded to Marceaux via two checks, one in the amount of $2,804.37, the other for $6,304.03, for a total of $9,108.40. Both checks included Centrix’s name on them.

The settlement checks were returned to Safeway with the demand that the name of Centrix be removed from them. Rather than remove Centrix from the checks, Safeway instituted a Petition for Concur-sus against the Vanders, Marceaux, and Centrix. Safeway deposited funds in the registry of the court in the amount of $9,108.40.

All three defendants to the concursus proceeding answered the petition. Thereafter, a motion to withdraw funds from the registry of the court was filed by Mar-ceaux and the Vanders. Marceaux sought payment of its attorney’s fees and costs, and the Vanders sought the remaining settlement funds.

On February 14, 2008, the trial court conducted a hearing to determine which party was entitled to what amount of the settlement proceeds. At the hearing, evidence was introduced indicative of the settlement agreement between the Vanders and Safeway, the contract between the Vanders and Marceaux, and the cost statement of Marceaux. Following the hearing, the trial court took the matter under advisement.

On March 14, 2008, the trial court found that Centrix was entitled to all of the funds held in the registry of the court. Marceaux, the Vanders, and Centrix have all appealed the trial court’s judgment. .They are alleging the following assignments of error, respectively:

ASSIGNMENTS OF ERROR:

1. The trial court erred when it failed to award attorney’s fees and costs to Marceaux.
|42. The trial court erred when it chose to award the remaining settlement proceeds to Centrix rather than to the Vanders.
3. The trial court erred in not awarding attorney’s fees and costs to Cen-trix.

ASSIGNMENT OF ERROR # 1:

Marceaux alleges that the trial court erred when it failed to award it attorney’s fees and costs. Its argument is that the trial court committed a legal error when it incorrectly ranked the privileges to the settlement proceeds. We agree.

Whether an attorney’s fee privilege ranks ahead of a privilege asserted by another with a competing security interest is purely a matter of law. Irons v. U.S. Bank, Inc., 07-570 (La.App. 4 Cir. 8/14/07), 966 So.2d 646. Whether the trial court correctly interprets the law is subject to a de novo review. Randall v. Concordia Nursing Home, 07-101 (La.App. 3 Cir. 8/22/07), 965 So.2d 559, writ denied, 07-2153 (La.1/7/08), 973 So.2d 726.

Louisiana Revised Statutes 37:218 (emphasis added), in pertinent part, states:

A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws.
B. The term “fee”, as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.

We find the language of this statute to be clear. Marceaux’s claims for its attorney’s fees and costs constitute a special privilege superior to the privilege granted to Centrix under Louisiana Commercial laws. The trial court relied upon | General Motors Acceptance Corp. v. Wausau Insurance Co., 27,989 (La.App. 2 Cir. 2/28/96), 669 So.2d 619 for its finding that Centrix would receive all the proceeds deposited by Safeway in its registry. This case does not address the issue before us.

The General Motors case relied upon by the trial court involves competing interests between a creditor and a debtor in proceeds paid by an insurance company for damage done to a vehicle it insured. However, the case cited by the trial court does not address whether the security interest asserted by a creditor outranks that asserted by an attorney for its fees and costs under La.R.S.-37:218. As such, the trial court’s reliance on this case was incorrect.

A more pertinent case is that of Irons, 966 So.2d 646. In Irons our forth circuit found that the special privilege granted to an attorney for fees and costs precedes that of a mortgagee for insurance proceeds paid for damages to the mortgaged property. The court’s rationale was that without the attorney’s efforts, the proceeds would not have been generated. Here, we are presented with a nearly identical scenario.

Without the efforts and expenses put forth by Marceaux, Safeway would have paid only $2,804.37 for the property damage to the pick-up. Given that the total recovery exceeded that amount three fold, it is only reasonable to conclude that it would violate traditional notions of fairness to prevent Marceaux from reaping the benefits of its endeavor.

As such, we find that the trial court committed legal error in denying Mar-ceaux its contractually agreed upon attorney’s fees, costs, and expenses. The record includes documentary evidence that Marceaux and the Vanders agreed upon an attorney’s fee of “one-third (l/3rd) of all amounts recovered.” The contract between Marceaux and the Vanders also included the following sentence: “It is agreed and understood that |fiI(we) are personally obligated to refund to the attorneys costs and expenses associated with this matter.” Marceaux submitted documentary evidence that it has expended $940.79 in costs and expenses.

Accordingly, we reverse the trial court’s ruling that Centrix is entitled to the full proceeds available ($9,108.40) in the court’s registry. We render that the correct judgment is that Marceaux is entitled to one-third of that sum, $3,036.13, plus its costs and expenses submitted, $940.79, for a total of $3,976.92. This leaves a balance of $5,131.48 in the court’s registry, the dispersion of which we will address in the remaining assignments of error.

ASSIGNMENT OF ERROR # 2:

The Vanders contend that the trial court erred when it chose to award the settlement proceeds deposited in its registry to Centrix. We have already found this to be erroneous in Assignment of Error # 1 because Marceaux’s special privilege granted to it in La.R.S. 37:218 outranks the privilege asserted by Centrix. As such, we will now conduct a de novo review of the record to determine whether the remaining settlement proceeds should be dispersed to Centrix or to the Vanders.

“Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.” La.Civ.Code art. 1983. Louisiana Civil Code article 2046 states, “[w]hen 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.”

Centrix argues that while it is true that the insurance contract between Safeway and the Vanders is the law between those parties, it is also true that the retail installment contract between it and the Van-ders is the law for them. As such, Centrix 17contends that its retail installment contract’s terms and conditions with the Van-ders clearly provides that it is entitled to ownership of the insurance proceeds paid by Safeway. We agree.

The contract between Centrix and the Vanders states, in pertinent part, the following:

2. YOUR OTHER PROMISES TO US:
c. Security interest
You give us a security interest in:
• All money or goods received (proceeds) for the vehicle;
d. Insurance you must have on the vehicle.
If the vehicle is lost or damaged, you agree that we may use any insurance settlement to reduce what you owe or repair the vehicle.

It is clear from the. language of the contract that the Vanders granted Centrix a valid security interest in any proceeds from an insurance settlement for damage to the vehicle. Here, there is no dispute that there is damage to the vehicle, and there is no dispute that the proceeds in the court’s registry are from Safeway paying an insurance settlement

The Vanders argue that the written settlement agreement they perfected with Safeway constitutes a transaction or compromise between them and has the force of a thing adjudged. They contend that because the settlement agreement does not provide for the name of Centrix to be placed on the settlement check, Safeway has | ¿failed to comply with the settlement agreement as written. As such, the Van-ders assert that their motion to withdraw the funds from the registry of the court was a valid action to seek enforcement of the settlement agreement.

The Vanders’ argument is misguided. Whether there is a transaction or compromise between the Vanders and Safeway is not pertinent to the question before us. The contents of that alleged transaction or compromise do not alter the security interest granted to Centrix by the Vanders in their retail installment contract.

The Vanders state in brief that Safeway settled the dispute with them for $6,304.03, with Safeway paying an additional $2,804.37 for the property damage to the vehicle. Even though the Vanders averred in their petition for damages that they suffered damages for loss of use of the vehicle, and also pled for statutory penalties and attorney’s fees, it is clear from the record that the total, $9,108.40, was for property damage. Paragraph six in Safeway’s petition for concursus states (emphasis added):

In an effort to compromise this matter Safeway Insurance Company of Louisiana initially paid $2,804.37 to Tate Van-der, April Vander, Marceaux Law Firm LLC and Centrix Financial Corporation Service Company for the fire damage. Subsequently, on June 11, 2007, Safeway Insurance Company of Louisiana settled the engine damage claim for $6,304.03 and made the check payable to Tate Vander, April Vander, Marceaux Law Firm LLC and Centrix Financial Corporation Service Company.

The Vanders answered this petition for concursus. In that answer, in paragraph six, the Vanders stated, “[t]he allegations contained in Paragraph 6 are admitted.” Clearly this is an admission by the Van-ders that the settlement proceeds were for damage to the vehicle and not for damages associated with loss of use of the vehicle or statutory penalties or attorney’s fees. As such, given the security interest the Van-ders granted to Centrix in the retail installment contract, we render that the | remainder of the proceeds in the court’s registry is to be dispersed to Centrix.

ASSIGNMENT OF ERROR # 3:

Centrix contends that the trial court erred in not awarding it attorney’s fees and costs. We find that this contention has merit.

It is well-established that, generally, attorney’s fees are not allowed except where authorized by statute or agreed to by contract. State, DOTD v. Williamson, 597 So.2d 439 (La.1992).

The retail installment contract between Centrix and the Vanders is the law between them. It includes the following (emphasis added):

3. IF YOU PAY LATE OR BREAK YOUR OTHER PROMISES
c. You may have to pay attorney’s fees and ■ collection costs. If we hire an attorney to collect what you owe or to enforce this contact, you will pay the attorney’s fees. If you purchased the vehicle for personal, family or household purposes, the attorney’s fees you owe will not exceed 25% of the total amount payable under this contact. You will also reimburse use for our out-of-pocket collection costs and expenses in collecting what you owe and enforcing our security interest under this contract.

It is clear that the law between Centrix and the Vanders is that the Van-ders will pay the fees that Centrix incurred in hiring an attorney to enforce the contract. As such, the trial court erred in not awarding Centrix attorney’s fees and costs. Although the record does not have any support for how much Centrix incurred in attorney’s fees, when it is evident from the record what services the attorney provided, proof of those services is not necessary. Fed. Serv. Corp. v. Mule-Durel, Inc., 95-2192 (La.App. 4 Cir. 5/15/96), 676 So.2d 597, writ denied, 96-1562 (La.9/27/96), 679 So.2d 1346.

|10At the trial level, Centrix answered the petition for concursus, attended a hearing on Marceaux and the Vanders’ motion to withdraw funds from the court’s registry, and submitted a post-hearing brief. Given that we have the entire record before us, coupled with the interest of judicial economy, we determine that Cen-trix was reasonably entitled to $1,000.00 in attorney’s fees for work done at the trial level.

ANCILLARY MATTER:

Centrix has requested attorney’s fees for work done on this appeal. We grant this request.

“An increase in attorney’s fees for services rendered on appeal is usually awarded when the defendant appeals and obtains no relief on appeal, and when the plaintiff requests it in accordance with proper appellate procedure.” Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133, 138 (La.App. 3 Cir.1979). (Emphasis added.) “Because attorney fees were correctly awarded below, to not award increased attorney fees for the additional work required for this appeal would be inconsistent with that judgment.” Acadian Serv., Inc. v. Durand, 01-1554, p. 4 (La.App. 3 Cir. 4/3/02), 813 So.2d 1142, 1144.

Despite the Riche court’s inclusion of the word “usually,” there are eases in this circuit that ignore its presence and systematically disallow a request for attorney’s fees for appellate work performed if the opposing party gets any relief, irrespective of the overall result of the case. For an example of such, see Vickers v. Interstate Dodge, 04-109 (La.App. 3 Cir. 9/29/04), 882 So.2d 1236, wherein a proper request for additional attorney’s fees for work performed on appeal was denied because a defendant/appellant successfully appealed $300 of a $25,000 judgment.

We find no basis, jurisprudentially or otherwise, to routinely deny attorney’s Infees on the ground stated in cases such at Vickers. If we were to continue the trend of denying attorney’s fees to litigants for work performed on appeal due to that party’s inability to achieve complete success, we are concerned that a chilling effect would take place. The automatic denial of appellate attorney’s fees would tend to discourage a party from asserting an issue it feels needs appellate adjudication. See Judge Culpepper’s dissent in Gagnard v. Travelers Ins.Co., 380 So.2d 191 (La.App. 1 Cir.1980).

Prior to Riche, in the case of Neck v. Coleman Oldsmobile, Inc., 356 So.2d 532 (La.App. 1 Cir.1977), our first circuit granted the opposing party some relief when it amended the trial court’s judgment by removing $500 in damages awarded to the plaintiff, yet awarded an additional $500.00 in attorney’s fees for work done on appeal.

Moreover, this court, in Randall v. Concordia Nursing Home, 07-101 (La.App. 3 Cir. 8/22/07), 965 So.2d 559, writ denied, 07-2153 (La.1/7/08), 973 So.2d 726, recently awarded $5,000.00 in additional attorney’s fees to the plaintiffs attorney despite finding that the jury’s original award of $150,000.00 was abusively high and reducing that award to $100,000.00. In Randall, the defendant nursing home had raised several assignments of error, and the plaintiff had been generally successful in defending its award received at the trial level.

Given the above general rule and the cited exceptions, it is clear to this court that whether we award attorney’s fees for work done on appeal, when the attorney is less than 100% successful, is an issue to be determined on a case by case basis. See Champion v. Panel Era Mfg. Co., 410 So.2d 1230 (La.App. 3 Cir.1982) wherein this court granted plaintiff/appellees attorney’s fees for services rendered on appeal of 11⅞$1,000.00 despite upholding the trial court’s findings regarding quantum over the protest of the plaintiff/appellees. (See also Palmer v. Anchor Marine, Inc., 331 So.2d 114 (La.App. 1 Cir.1976), wherein plaintiff/appellee was denied a request for modification of the trial court’s judgment, yet was awarded attorney’s fees for work performed on appeal of $450.)

Here, Centrix has properly requested additional attorney’s fees for work done on appeal. However, Marceaux has obtained the relief it requested as we have reversed the trial court’s ruling that Centrix was to receive all the proceeds deposited in its registry. As such, if we were to require 100% success, Centrix would not be allowed to recover additional attorney’s fees for work done on appeal.

The basis for awarding additional attorney’s fees for work performed on appeal is that the litigant incurred additional expenses to protect rights or increase awards established at the trial level. There is no doubt that Centrix has incurred such expenses in the case before us.

Moreover, the attorney’s fees under the retail installment contract between Centrix and the Vanders are a penalty designed to indemnify Centrix. While Centrix has not completely prevailed on appeal, it has successfully defended the remainder of the proceeds it was awarded from the Van-ders, and has successfully been awarded attorney’s fees for work done at the trial level despite the trial court inappropriately denying them. Here, we have awarded Centrix $1,000.00 in attorney’s fees at the trial level. As such, an additional award for attorney’s fees for appellate work would be consistent with the trial court’s judgment.

Accordingly, given Centrix’s level of success in defending its award, the additional expenses it has incurred in protecting that award, and that attorney’s fees | iSwere due it on the trial level, we find it appropriate in this case to award additional attorney fees as requested. After thoroughly reviewing the record, we find that $1,000 in additional attorney’s fees is a reasonable award to Centrix for work performed on this appeal.

CONCLUSION:

Marceaux, the Vanders, and Centrix each alleged one assignment of error. First, we find that the trial court failed to recognize the special privilege granted to Marceaux for its fees and expenses under La.R.S. 37:218. As such, we reverse the trial court’s judgment and render that Marceaux is first to be paid from the funds deposited in the trial court’s registry for its fees, costs, and expenses in the amount of $3,976.92. The remainder of the proceeds are to be paid to Centrix as per its retail installment contract with the Van-ders. Further, we find Centrix is entitled to attorney’s fees based upon its contract with the Vanders. As such, we award Centrix $1,000.00 in attorney’s fees and costs for work done at the trial level and $1,000.00 in attorney’s fees and costs for work done on the appellate level. Each party is to pay its own costs for these proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

COOKS, J., affirms in part and dissents in part.

COOKS, J.,

affirms in part and dissents in part.

_JjThe fees Centrix claims resulted from its incorrect assertion that plaintiffs’ lawyer was not entitled to attorney fees. It should not be awarded attorney fees for pursuing what it was not entitled to demand. The contract does not speak to Centrix’s fee claim for work performed to advance a meritless position. Centrix’s contract only allows it to hire an attorney to collect what the buyer “owe[d] or to enforce the contract.” Centrix could not collect what was owed it or enforce the contract against “privileged” proceeds; it had no right, contractually or otherwise, to advance any claim against the privileged portion of the funds deposited in the con-cursus proceeding. Therefore, I dissent from the portion of the opinion awarding any amount of attorney fees to Centrix.


author: BROWN, Chief Judge.

text:
    SHREVEPORT NEON SIGNS, INC., Plaintiff-Appellee, v. Ralph D. WILLIAMS, Jr., Defendant-Appellant.
    No. 44,079-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 2009.

      Robert A. Jahnke, Shreveport, for Appellant.
    Jefferson R. Thompson, for Appellee.
    Before BROWN, PEATROSS, and LOLLEY, JJ.
   BROWN, Chief Judge.

hOn September 26, 2006, appellant, Ralph Williams, Jr., executed a lease agreement in favor of appellee, Shreveport Neon Signs, Inc. (“Shreveport Neon”). The lease agreement that was executed by Williams was for the erection of two billboard signs on property that he owned for a term of 20 years. The agreed upon price was not specified in the lease agreement, but both parties state that it was $12,000.

Following the execution of the lease agreement, Shreveport Neon sought the approval of the Louisiana Department of Transportation and Development (“DOTD”) to erect the two billboards. DOTD issued Shreveport Neon a permit to erect one sign, and as a result Shreveport Neon paid Williams ItijOOO.

After accepting payment for the one billboard, and after Shreveport Neon had ordered its sign and obtained customers, Williams refused Shreveport Neon access to his property. Through counsel, Williams claimed that the agreement was invalid. We note, however, that Williams did not return the $6,000 paid by Shreveport Neon. Thereafter, Shreveport Neon filed a lawsuit seeking specific performance of the lease agreement, damages, and attorney fees.

Following trial, the court rendered judgment in favor of Shreveport Neon, finding that: (1) the lease agreement was valid; (2) Williams caused a disturbance in the use and enjoyment by Shreveport Neon; (3) Shreveport Neon was entitled to damages for the loss of rental income ($18,-200); and (4) Shreveport Neon was entitled to attorney fees ($6,000). The court also |2found that Williams was entitled to the full $12,000 for the lease and awarded Williams the $6,000 not paid by Shreveport Neon.

Williams filed a motion for new trial asserting newly discovered evidence and that the judgment was contrary to the law and evidence. The new trial motion was denied.

Williams now appeals the judgments of the trial court. No answer to the appeal was filed. For the following reasons, we affirm in part and reverse in part.

Discussion

Lease

A lease is a synallagmatic contract by which one party, the lessor, binds himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay. La. C.C. art. 2668. A lease may be formed orally or in writing. La. C.C. art. 2681. The essential elements of a lease are the thing, the rent, and the consent of the parties. Southern Treats, Inc. v. Titan Properties, L.L.C., 40,873 (La.App.2d Cir.04/19/06), 927 So.2d 677, writ denied, 06-1170 (La.09/15/06), 936 So.2d 1271.

The existence or nonexistence of a lease is a question of fact. Southern Treats, supra. Absent manifest error, an appellate court may not overrule a trial court’s finding of fact. Lirette v. State Farm Ins. Co., 563 So.2d 850 (La.1990).

| ¡¡The thing leased was Williams’ property for the erection of two billboard structures. The price/rent was a one-time payment of $12,000 for a 20-year term. At issue is the legitimacy of Williams’ consent.

Williams argues that the lease terminated immediately since Shreveport Neon was unable to obtain DOTD permits to erect both billboards. This argument is based upon a portion of Article 5 in the lease agreement which states, in pertinent part:

If LESSEE is prevented from constructing advertising structure(s) at the lease premises by reason of any final government law, regulation, order or other action, this lease will terminate immediately.

The clause upon which Williams relies is clearly one that reserved the right of Shreveport Neon (Lessee) to terminate the lease prior to the end of its term if the government prevented it from constructing its advertising structure(s). See La. C.C. art. 2718. The exercise of this right belonged solely to Shreveport Neon. “If the party entitled to this right does not exercise it, then the lease is treated as one with a fixed term.” 2004 Revision Comments (a), La. C.C. art. 2718. Because Shreveport Neon did not exercise its right to terminate the lease, we find that Williams’ argument that the lease terminated immediately is without merit.

Next, Williams asserts that the lease is invalid because the rental price is out of proportion to the value of the thing. It has long been held that the rental price must be serious and not out of proportion to the thing’s value. La. C.C. art. 2675; Arnold v. Board of Levee Com’rs of Orleans Levee District, 366 So.2d 1321 (La.1978). Other than the testimony of Williams’ | .¡neighbor, Mike McGee, stating how much a sign company supposedly offered to pay him in order to put up two billboards, the record does not demonstrate the rental value of Williams’ land for these structures. Billboard signs are not allowed to be within 1000 feet of each other. Thus, Williams stated that because a permit had been given to Shreveport Neon, McGee could not lease his property for such a structure. Williams agreed to invalidate the Shreveport Neon lease in return for a share in any lease McGee obtained. Furthermore, McGee’s testimony did not specify a lease term nor did he provide any details to indicate a binding offer. The evidence presented was speculative, at best, and it fails to support the claim that the price was not serious or out of proportion to the thing’s value. We also note that Williams is a licensed realtor who would have had access to rental valuations.

Williams contends next that the lease agreement is dissolved due to Shreveport Neon’s failure to pay the rent when due. Lease cancellation is not favored in Louisiana and a lease will only be dissolved when a lessor proves clear entitlement to dissolution. Housing Authority of Town of Lake Providence v. Burks, 486 So.2d 1068 (La.App. 2d Cir.1986). Furthermore, a lessor’s right to dissolve a lease upon the lessee’s failure to pay rent timely is subject to judicial control; as a result, a lessee’s failure to pay rent timely does not automatically require the termination of the lease. Huckabay v. Red River Waterway Com’n, 27,113 (La.App.2d Cir.10/12/95), 663 So.2d 414, writ denied, 95-3007 (La.03/08/96), 669 So.2d 403.

|sIn the case sub judice, the lease agreement stated that the rental had been prepaid, although it had not. Williams specifically questioned Shreveport Neon’s president, Danny Nevels, about this provision. Nevels informed Williams that it only meant that there was no annual or monthly rental fees due, and that Williams would be paid the $6,000 per sign rental once Shreveport Neon received its permits from DOTD. Williams, apparently, was satisfied with this explanation and subsequently signed the lease agreement. Thereafter, upon obtaining a permit from DOTD for one billboard, Shreveport Neon tendered payment in the amount of $6,000 to Williams. A short time after Williams received the initial $6,000, Shreveport Neon informed him that DOTD had denied it a permit for the second billboard. When Williams expressed his displeasure in only receiving $6,000, Nevels informed both Williams and his mother that he would pay them the other $6,000, even though he was only able to obtain one permit. In the following days Nevels attempted to contact both Williams and his mother numerous times in order to facilitate the payment of the remaining $6,000; however, both avoided his attempts to contact them. Accordingly, we do not agree with Williams’ contention that the lease should be dissolved as a result of Shreveport Neon’s failure to pay the full $12,000 when due.

Lastly, Williams argues that the lease is invalid and unenforceable due to error, fraud, or duress. See La. C.C. art. 1948. Williams contends that Nevels misrepresented or suppressed the truth when negotiating the terms of the lease, and further that it is not even plausible that he would Lhave signed a contract for $6,000 per advertising sign if he had known the true value of the signs. Williams, a licensed realtor, has put forth no evidence to show that Nevels made any misrepresentations, nor, as we found previously, has he put forth adequate evidence to prove the true value of the lease. Therefore, we find that Williams failed to prove that his consent was vitiated by fraud, error, or duress.

In light of our above analysis, we find that the trial court did not err by finding that a valid and enforceable lease existed.

Damages and Attorney Fees

In his second assignment of error, Williams argues that the trial court erred by awarding damages and attorney fees to Shreveport Neon. Article 15 of the lease agreement reads:

LESSOR hereby warrants to LESSEE that LESSOR is not aware of any state or local government plans to expand Dixie Shreveport Road, that LESSOR is unaware of any changes in the Caddo Parish ordinances that will prohibit or inhibit the installation, retention, removal, or replacement of a billboard, and LESSOR is unaware of any information of any kind whatsoever that would prevent installation of a billboard or would cause LESSEE to have to remove or modify the billboard. Should LESSOR violate the terms of this paragraph, then LESSOR shall be liable to LESSEE for LESSEE’S damages, and attorney fees.

Under Louisiana law, attorney fees are not allowed except where authorized by special statute or by contract. Maggio v. Robinson, 31,913 (La.App.2d Cir.05/05/99), 741 So.2d 103. Although the lease agreement at issue authorized the awarding of attorney fees if Williams violated the terms of Article 15, we do not find that Williams violated the terms of that provision. Article 15 clearly pertains to Williams’ knowledge at the time of executing the lease agreement — whether he was aware of any governmental |7or other reason at the time of signing the lease agreement that would prevent Shreveport Neon from installing its billboard. We do not see anywhere in the record where it was shown that Williams had such knowledge. Therefore, we find that the trial court’s determination that Williams was liable for Shreveport Neon’s attorney fees of $6,000 was erroneous, and we reverse that award.

Unlike attorney fees, the awarding of damages does not require authorization by special statute or by contract. A lessor who interferes with a lessee’s possession is liable for the damages that result. See Walters v. Greer, 31,480 (La.App.2d Cir.01/22/99), 726 So.2d 1094. In the present case, it is clear that Williams interfered with Shreveport Neon’s possession. Williams refused to allow Shreveport Neon access to the leased premises in order to erect its sign. As a result of this interference, Shreveport Neon suffered damages. The trial court was, therefore, within its discretion when it made a damages determination of $18,200.

Accordingly, we find that the trial court erred in awarding attorney fees, but did not err in awarding damages.

Motion for New Trial

La. C.C.P. art. 1972 states:
A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.

| sWilliams contends that his motion for new trial should have been granted because the judgment was clearly contrary to the law and evidence, and/or because of newly discovered evidence. Williams’ contention that the judgment was clearly contrary to the law and evidence is based upon his argument that the lease terminated immediately in accordance with Article 5 of the lease agreement. As we have found that the lease agreement did not terminate immediately upon Shreveport Neon’s failure to obtain a second permit from DOTD, Williams’ argument that the judgment was clearly contrary to the law and evidence is without merit.

Williams’ other argument, that a new trial should have been granted based upon newly discovered evidence, relies upon the affidavit of Sammy Maranto, zoning inspector for the Metropolitan Planning Commission, and a parish zoning ordinance pertaining to the placement of advertising signs. According to Maranto’s affidavit, Shreveport Neon did not apply to the Metropolitan Planning Commission for a sign permit until early 2008. Furthermore, Maranto stated that Shreveport Neon’s proposed sign location falls within a 500-foot prohibition area, as set forth in Caddo Parish Code, Article IX Section 51-1122(c)(7).

While it may be true that Williams discovered the parish zoning ordinance and received the affidavit from Maranto since trial, Williams failed to show why he could not, with due diligence, have obtained this evidence prior to or during trial. Obviously the parish zoning ordinance and the Metropolitan Planning Commission existed before the trial took place.

10Furthermore, even if such an ordinance is applicable to this location, as previously stated herein, the right to terminate the lease upon failure to obtain a government permit was conferred upon Shreveport Neon in the lease, and Shreveport Neon has not chosen to do so. Accordingly, we find that the trial court did not err by denying Williams’ motion for new trial.

Conclusion

For the foregoing reasons, that portion of the judgment of the trial court, finding that a valid and enforceable lease existed between appellant, Ralph Williams, Jr., and appellee, Shreveport Neon Signs, Inc., and awarding damages to appellee, is hereby affirmed. Furthermore, the judgment of the trial court denying appellant’s motion for new trial is also affirmed. The portion of the trial court’s judgment awarding attorney fees, however, is reversed. The costs of this appeal are assessed to the parties equally.

      . At Williams’ direction this money was paid to Williams' mother, Hylena Badgley.

      . The initial trial was presided over by Judge Charles Scott. Due to Judge Scott's retirement, however, the motion for new trial was presided over by Judge Scott Crichton.

      . Although the agreement did not state the price (rent), the parties agreed that it was $12,000.

      . An off-premises outdoor advertising sign is not allowed within 500 feet of 1-220.

      . In the instance that the zoning ordinance is applicable to Shreveport Neon’s proposed site, we understand that it may have affected whether Shreveport Neon received damages. We note, however, that in addition to failing to show why this evidence could not have been discovered before or during trial with due diligence, Williams failed to prove that Shreveport Neon would not have been able to erect its billboard at another site on Williams’ property.


author: LOLLEY, J.

text:
    Larry G. CLOWER, Plaintiff-Appellant, v. BANK OF AMERICA, et al., Defendants-Appellees.
    No. 44,034-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 2009.
    Rehearing Denied April 2, 2009.

      Billy R. Pesnell, Shreveport, for Appellant.
    Colvin, Weaver & Cerniglia by James H. Colvin, Shreveport, for Appellee, Colvin, Weaver & Cerniglia.
    Newell & Newell by Daniel W. Newell, Homer, for Appellee, Bank of America.
    Cook, Yancey, King & Galloway by James R. Sterritt, Shreveport, for Appel-lee, Ken Bailey.
    Before BROWN, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

I,The matter here appealed involves a summary judgment dismissing malpractice claims made by Larry G. Clower (“Plaintiff’) against Charles E. Weaver and Col-vin, Weaver & Cerniglia law firm (“CWC”). The allegations of malpractice arise from a suit still pending on the docket of the Second Judicial District Court, Claiborne Parish, entitled Bank of America, N.A. v. Wilma Juanita Clower, Janet Lee Thompson, and Larry Gene Clower, No. 37,289 (the “underlying suit”). For the following reasons, we affirm.

Facts and ProCedural History

In the underlying suit, Clower owned an undivided 3.33 percent interest in a 66.5 acre tract of land located in Claiborne Parish (“the Property”). Bank of America filed a petition to partition the Property by licitation on January 14, 2006, naming Wilma Clower, Janet Thompson, and Plaintiff as defendants. On July 13, 2006, the trial court appointed Charles Weaver to represent Plaintiff in the partition suit, as Plaintiff was a resident of Florida. Weaver sent Plaintiff a letter, dated July 31, 2006, notifying Plaintiff that a petition for partition by licitation had been filed by Bank of America, that Weaver had been appointed “Curator to effectuate service upon you in this case,” and enclosed in the letter a copy of the petition. Plaintiff made no reply to Weaver or any member of the party.

On October 12, 2006, following a hearing on Bank of America’s petition for partition, the trial court ordered the Property to be partitioned by licitation and that a commission be issued to the Sheriff of Claiborne Parish to sell the Property at public auction, according to law, and to the highest | gbidder, after the advertisements required for judicial sales. In addition, the trial court relieved Weaver (and CWC) of his appointment as attorney for Plaintiff.

Sheriff Ken Bailey advertised the sale of the Property in the Haynesville News on November 16, 2006, and December 14, 2006, making known that the Property would be put up at public auction to the highest bidder on December 20, 2006. On the day of auction, Bank of America was the only bidder, winning the Property for $2,000.

On October 12, 2007, Plaintiff filed a petition, alleging that: he had no knowledge or notice that the Property was being offered for sale at public auction; he received no notice from Sheriff Bailey, Bank of America, Weaver, or CWC; and, further, as a resident of Florida, did not subscribe to or receive the Haynesville News. The Plaintiff further alleged that, had he known of the auction, he would have bid at least $1,000 per acre (or $66,000) on the property.

One of Plaintiffs allegations was that he was entitled to a money judgment against Weaver and CWC “for all reasonable damages sustained by Plaintiff as a result of their professional negligence and malpractice in representing Plaintiff.” Plaintiff asserted that Weaver and CWC failed to inform Plaintiff of the judgment for partition by licitation rendered on October 12, 2006; notify Plaintiff of the date of the auction; advise Plaintiff of his right to bid on the Property; notify Plaintiff that Bank of America | ¡¡purchased the Property for $2,000; oppose the homologation of the partition; and inform Plaintiff that he had the right to appeal the judgment Homolo-gating the Partition.

Weaver and CWC did not answer Plaintiffs amended petition, but instead filed a motion for summary judgment on March 14, 2008, based on the fact that Weaver was relieved of his responsibilities as attorney for Plaintiff by order of court at the hearing on October 12, 2006. A hearing on the motion for summary judgment was held on April 15, 2008, where, following argument, the trial court granted the motion for summary judgment, and dismissed Plaintiffs claims against Weaver and CWC with prejudice. This judgment was rendered on April 23, 2008.

On April 29, 2008, Plaintiff filed a motion for a new trial, which the trial court set for hearing on June 2, 2008. In addition, Plaintiff filed a motion to stay proceedings because the case had never been randomly assigned as required by La. C.C.P. art. 253.1 and 253.2.

At the hearing of June 2, 2008, counsel for Bank of America told the trial court that Bank of America had decided to grant the relief Plaintiff asked for; namely, to vacate the sheriff sale of the Property and the homologation and “just do it over,” and then requested the court to order the sheriff to re-notice and reschedule the sale of the Property.

|4The trial court denied all of Plaintiffs motions set before the hearing, without argument, and ordered the Deputy Clerk of Court to randomly assign all matters following that date, June 2, 2008. On June 6, 2008, the trial court signed a written judgment denying Plaintiffs motion for new trial, and granted the motion for summary judgment, dismissing Plaintiffs claims against Weaver and CWC.

Plaintiff subsequently filed a motion for devolutive appeal, asking this court to reverse the granting of the summary judgment. Bank of America, on June 26, 2008, filed a written motion to set aside the judicial sale and reissue the process to begin a new judicial sale, which the trial court granted.

Discussion

Summary judgments are subject to a de novo review on appeal using the same criteria as the trial court to determine whether summary judgment is appropriate. Magnon v. Collins, 1998-2822 (La.07/07/99), 739 So.2d 191; Bumgardner v. Terra Nova Ins. Co. Ltd., 35,615 (La. App.2d Cir.01/23/02), 806 So.2d 945. If the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law, then summary judgment is appropriate. La. C.C.P. art. 966(B); Bumgardner, supra.

The motion for summary judgment is now favored and “designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969.” La. C.C.P. art 966.

|fiGiven Bank of America’s action to set aside the judicial sale of the Property, the only possible complaint Plaintiff could have against his court-appointed attorney is the legal costs he incurred in order to urge Bank of America to set aside the judicial sale.

La. C.C.P. art. 5095 provides:

The attorney at law appointed by the court to represent a defendant shall use reasonable diligence to inquire of the defendant, and to determine from other available sources, what defense, if any, the defendant may have, and what evidence is available in support thereof. Except in an executory proceeding, the attorney may except to the petition, shall file an answer in time to prevent a default judgment from being rendered, may plead therein any affirmative defense available, may prosecute an appeal from an adverse judgment, and generally has the same duty, responsibility, and authority in defending the action or proceeding as if he had been retained as counsel for the defendant. (Emphasis added)

In In re RMK, 499 So.2d 190, 192 (La. App. 2d Cir.1986), this court stated:

It is certainly correct that an attorney appointed to represent a nonresident defendant in an adoption proceeding has responsibilities beyond accepting service of process, communicating with the defendant, and filing an answer. The Code of Civil Procedure clearly provides that the appointed attorney generally has the same duty, responsibility, and authority in defending the action or proceeding as if he had been retained as counsel for the defendant. The appointed counsel is not relieved of these responsibilities and the court cannot relieve him of these responsibilities simply because the absentee defendant does not contract with the court appointed attorney for representation at an agreed fee. The court appointed counsel’s obligation is to proceed in the manner directed by the code article. As provided in the code, the appointed attorney is entitled to a reasonable fee for his services to be paid by the plaintiff and taxed as costs of court. (Emphasis added)

| fiHowever, it is uncontested that Plaintiff took no action whatsoever after being sent notification of the legal measure by Weaver’s certified letter sent on July 31, 2006. “[T]he basic purpose of a curator ad hoc is to represent the interests of and to attempt to locate the absent defendant.” Wright v. Waguespack, 2002-0603 (La.App. 1st Cir.12/20/02), 836 So.2d 436, 438. “A curator who sent an absentee a certified letter at the absentee’s last known address as given by the petition had performed his duties conscientiously.” Id. at 439.

To establish a claim for legal malpractice, a plaintiff must prove: 1) the existence of an attorney-client relationship; 2) negligent representation by the attorney; and 3) loss caused by that negligence. Teague v. St. Paul Insurance Company, 2002-1384 (La.02/01/08), 974 So.2d 1266.

Weaver, as a court-appointed attorney for Plaintiff, could not have taken action against the judicial sale without knowing what his client’s desires were. Indeed, because Plaintiff kept his curator, Weaver, in the dark, Weaver did not know whether Plaintiff opposed the judicial sale, supported it, or cared in the slightest. Further, had Plaintiff timely taken an interest in the judicial proceeding of which Weaver notified him, Plaintiff would still have suffered the very legal fees for which he now asks. Plaintiff has simply failed to show any possible loss suffered because of Weaver’s actions or inactions as curator. Accordingly, we agree with the trial court that, in this suit for malpractice, there is no genuine issue of material fact and that Weaver is entitled to a judgment dismissing the suit as a matter of law. La. C.C.P. art. 966(B); Bumgardner, supra.

| 7Cqnclusion

For the foregoing reasons, the judgment of the trial court granting the motion for summary judgment in favor of Charles E. Weaver and Colvin, Weaver & Cerniglia and dismissing Larry G. Clower’s malpractice suit is affirmed. Costs of this appeal are assessed to Plaintiff, Larry G. Clower.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.

      . La. C.C.P. art. 253.1 provides: All pleadings filed shall be randomly assigned to a particular section or division of the court.
      La. C.C.P. art. 253.2 provides:
      After a case has been assigned to a particular section or division of the court, it may not be transferred from one section or division to another section or division within the same court, unless agreed to by all parties, or unless it is being transferred to effect a consolidation for purpose of trial pursuant to Article 1561. However, the supreme court, by rule, may establish uniform procedures for reassigning cases under circumstances where an expeditious disposition of cases may be effectuated.


author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Anthony TELLIS, Appellant.
    No. 44,010-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 2009.

      Louisiana Appellate Project by G. Paul Marx, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

11Anthony Tellis was charged with Attempted Second Degree Murder after shooting his cousin, Patrick Tillman, in the chest and abdomen. He was allowed to plead guilty to Aggravated Second Degree Battery (La. R.S. 14:34.7) pursuant to a plea agreement involving the reduction of the charge, and the dismissal of other pending charges.

The trial court imposed a sentence of 13 years at hard labor, after a thorough review of the sentencing guidelines contained in La. C. Cr. P. art. 894.1. The trial court focused on the facts of the offense:

• the firing of a weapon at close range, thus exhibiting deliberate cruelty;
• the use of a dangerous weapon;
• the significant permanent injury to the victim; and
• the substantial reduction in sentencing exposure resulting from the reduced charge.

The court noted in mitigation the defendant’s religious education efforts in prison and the defendant’s remorse for the offense.

A motion for reconsideration of sentence was filed which urged only exces-siveness, and we review only for constitutional excessiveness. The law relative to this review is well settled.

120ur examination of the record shows that the trial court adequately considered and articulated the sentencing factors which led to the sentence imposed. Considering the substantial reduction in sentencing exposure alone, the sentence imposed is in no way shocking to the conscience, nor is it constitutionally excessive. We affirm in all respects.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . The trial court noted that the evidence would have supported a conviction for the crime of original arrest, i.e., attempted second degree murder.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La. App.2d Cir. 1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.
      Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dor-they, 623 So.2d 1276 (La. 1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379.