text:
    Naomi WILLIAMS v. Arista ANDRUS, et al.
    No. 11-239.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Harold D. Register, Jr., Lafayette, LA, for Plaintiff/Appellant, Naomi Williams.
    Gerald A. Melchiode, Mary E. Lorenz, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee, Markel International Insurance Company, Ltd.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

|!After an altercation, the plaintiffs husband was shot and killed at a bar. The plaintiff subsequently filed suit against the alleged gunman, and his accomplice, the bar, and the owners and operators of the bar. The bar’s insurance company intervened and filed a motion for summary judgment, contending there was no coverage under its policy because of its “assault and battery” exclusion and/or “firearms” exclusion. The trial court granted the motion and entered judgment declaring that there was no coverage under the policy and dismissing all claims against the insurer. The plaintiff appeals, asserting that the trial court erred in granting the motion for summary judgment. For the following reasons, we affirm. We grant no relief as to the intervenor’s requests for dismissal and sanctions.

Factual and Procedural Background

According to allegations made in the petition, the plaintiff, Naomi Williams, and her husband, Treva Williams, were patrons of the Quality Lounge in Carenero, Louisiana. While at the bar, Mr. Williams and Briceton Gallien were allegedly involved in a “huge fight.” The plaintiff alleges that, after the altercation, the management of the Quality Lounge escorted Gallien and several other patrons from the bar, but did not call the police. According to the plaintiff, there was no security at the bar. The petition indicates that, accompanied by Jarvis Angelle, Gallien returned to the bar sometime later that evening. Gallien allegedly pointed at Mr. Williams and shouted, “[TJhere he is.” The plaintiff alleges that Angelle shot Mr. Williams in the chest; Mr. Williams was pronounced dead later that evening. The record indicates that Gallien and Angelle were subsequently charged criminally with second degree murder in connection with the shooting.

Mrs. Williams, individually and on behalf of her two minor children, filed this suit against Gallien and Angelle, the Quality Lounge, and its owners and ^operators. Markel International Insurance Company, Ltd. filed a petition for intervention, asserting that it had issued a commercial general liability policy to the Quality Lounge and that there was no coverage under the policy.

Markel subsequently filed a motion for summary judgment, contending that there was no coverage under the policy due to an “assault and battery” exclusion and a “firearms” exclusion contained in the policy. After a hearing, attended only by the attorney for Markel, the trial court granted the motion and entered judgment pronouncing that there was no coverage under the policy and dismissing all claims against Markel.

The plaintiff appeals, asserting that “[t]he trial court erroneously concluded there was no genuine issue of material fact as to the ambiguity of an insurance policy that excludes coverage for assault and battery and incidents committed with a firearm, but fails to exclude coverage for murder.”

Markel, in brief, urges this court to dismiss the appeal based on the plaintiffs failure to timely pay the costs of appeal and seeks sanctions for the plaintiffs alleged failure to serve the intervenor with a copy of its appellate brief.

Discussion

Louisiana Code of Civil Procedure Article 966 addresses motions for summary judgment. It states, in relevant part, that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Summary judgment is favored and is | ..¡“designed to secure the just, speedy, and inexpensive determination” of civil actions. La.Code Civ.P. art. 966(A)(2). Summary judgment is also an appropriate procedure for determining certain insurance coverage issues. Sensebe v. Canal Indem. Co., 10-703 (La.1/28/11), 58 So.3d 441 (citing Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024).

On appeal, summary judgments are reviewed de novo. Sensebe. 58 So.3d 441. When reviewing a trial court’s disposition of a motion for summary judgment, an appellate court should apply “the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Id. at 445. Where addressing whether an exclusion precludes insurance coverage, the appropriate questions are “(1) whether the exclusion is clear and unambiguous; (2) whether the exclusion applies to the facts of this case; and (3) whether there are any genuine issues of material fact precluding summary judgment.” Proshee v. Shree, Inc., 04-1145, p. 3 (La.App. 3 Cir. 2/2/05), 893 So.2d 939, 942.

A panel of this court recently reiterated the principles of insurance contract interpretation in Burns v. Couvillion, 10-763 (La.App. 3 Cir. 12/8/10), 53 So.3d 540. This court stated:

“An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles.” Orazio v. Henderson, 01-28, p. 2 (La.App. 3 Cir. 7/11/01), 790 So.2d 754, 755 (quoting Ledbetter v. Concord Gen. Corp., 95-809, p. 3 (La.1/6/96), 665 So.2d 1166, 1169, amended on other grounds, 95-809 (La.4/18/96), 671 So.2d 915). Additionally, “[t]he contract has the effect of law for the parties. La.Civ.Code art. 1983.” Id. When the language in an insurance contract is clear and explicit, no further interpretation may be made in search of the party’s intent. Hill v. Shelter Mut. Ins. Co., 05-1783, 05-1818 (La.7/10/06), 935 So.2d 691. A court should not strain to find ambiguity where none exists. Hebert v. Webre, 08-60 (La.5/21/08), 982 So.2d 770.

Id. at 546. However, “[e]xclusionary provisions in insurance contracts are strictly construed against the insurer, and any am-is construed in favor of the J¿nsured” Ledbetter v. Concord Gen. Corp., 95-809, p. 4 (La.1/6/96), 665 So.2d 1166, 1169, amended on other grounds, 95-809 (La.4/18/96), 671 So.2d 915.

The “Assault and Battery” Exclusion

A copy of the commercial general liability policy is contained in the record. The “assault and battery” exclusion therein states:

The coverage under this policy does not apply to any claim, suit, cost or expense arising out of assault and/or battery, or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or discretion of any Insured or Insured’s employees, patrons or any other person. Nor does this insurance apply with respect to any charges or allegations of negligent hiring, training, placement or supervision. Furthermore, assault and/or battery includes “bodily injury” resulting from the use of reasonable force to protect persons or property. The sentence “This exclusion does not apply to “bodily injury” resulting from the use of reasonable force to protect persons or property” is deleted from the Commercial General Liability Coverage Form, Section I, Item 2, Exclusions, a.

The plaintiff asserts that the assault and battery exclusion is ambiguous because it fails to define “bodily injury” and since it only applies to “assault and/or battery” and not wrongful death actions as a result of “murder.” Markel contends that although “the assault and battery exclusion does not specifically include murder,” there is no requirement that the exclusion enumerate the multiple possibilities encompassed by the exclusion. Markel also notes that “bodily injury” is defined elsewhere in the policy as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.”

In Bennett v. Ragon, 04-706, p. 7 (La. App. 1 Cir. 3/24/05), 907 So.2d 116, 120-21 (citations omitted), the first circuit explained that:

In the civil context ... assault is generally defined as the “threat of a battery.” Battery is defined as “[a] harmful or offensive contact with a person, resulting from an act intended to cause him to suffer such a contact.”....
In the criminal context, Louisiana Revised Statutes 14:33 defines battery as “the intentional use of force or violence upon the ^person of another.” Louisiana Revised Statutes 14:36 defines assault as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”

We find no merit in the plaintiffs assertion that the failure to include “murder” in the assault and battery exclusion bars its application to the facts of this case. The supreme court addressed the applicability of assault and battery exclusions to other criminal conduct in Ledbetter, 665 So.2d 1166. Therein, the supreme court quoted the United States Court of Appeals for the Second Circuit, stating:

While it is true that ambiguities are often construed against insurers, a clause may be general without being ambiguous, and even a vague clause may be ambiguous only at its edges. It is neither possible nor desirable for an insurance contract to enumerate the various kinds and degrees of attacks encompassed by the assault and battery exclusion. The clause need not mention rape or strangulation or mayhem, or other greater or lesser invasions of the person; all are subsumed, in the broad language employed.

Ledbetter, 665 So.2d at 1170 (quoting United Nat’l Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105 (2d Cir.1993)).

In Ledbetter, the supreme court addressed whether a rape and kidnapping perpetrated against a hotel patron was included within the ambit of a similarly-worded “assault and battery” exclusion. Although assault, battery, and rape are separately codified offenses under the criminal law, the supreme court noted that the same criminal act can constitute a violation of multiple criminal statutes, even if double jeopardy would prevent their prosecution. Id. The supreme court concluded that, because a rape “necessarily requires the intentional use of force and/or violence upon the person of another,” the assault and battery exclusion was unambiguous and precluded coverage for the rape. Id. at 1170. However, the supreme court also concluded that, because kidnapping does not necessarily involve the use of force and/or violence upon the person of another, the policy was ^ambiguous as applied to the facts of that case. Id.

In Bennett, 907 So.2d 116, the plaintiff brought suit as the result of the shooting, and eventual death, of a bar patron by the bar’s owner during an apparent robbery attempt by the patron. The first circuit noted that “the facts clearly demonstrate [the bar owner] intended an offensive contact when he fired the shotgun.” Id. at 121. The first circuit ultimately concluded that a similarly-worded assault and/or battery exclusion precluded coverage under the bar’s commercial general liability policy, finding that the wrongful death action arose from the bar owner’s assault and/or battery of the decedent. See also Law v. B.Z. Enter. One, Inc., 96-0537 (La.App. 1 Cir. 12/20/96), 684 So.2d 1121; Gaspard v. Northfield Ins. Co., 94-510, 94-511 (La.App. 3 Cir. 11/2/94), 649 So.2d 979, unit denied 94-2906 (La.2/9/95), 650 So.2d 1166.

Despite the plaintiffs contention that the ambiguity of the assault and battery clause creates a genuine issue of material fact, the basic facts of this case are not in dispute by the parties. The assault and battery exclusion clearly and unambiguously precludes coverage for “any claim, suit, cost or expense arising out of assault and/or battery.” As alleged by the plaintiff, the facts indicate that Angelle clearly intended an offensive contact when he shot at Mr. Williams. The unfortunate fact that Mr. Williams was killed as a result of the offensive contact does not negate that the claim arises from an assault and/or battery by Angelle. Further, although the criminal charges of second degree murder are far more serious than those of assault and battery, we note that “[i]t is neither possible nor desirable for an insurance contract to enumerate the various kinds and degrees of attacks encompassed by the assault and battery exclusion. The clause need not mention rape or strangulation or mayhem, or other greater or lesser invasions of [7the person; all are subsumed in the broad language employed.” Ledbetter, 665 So.2d at 1170. Therefore, we find no error in the trial court’s determination that the assault and battery clause precludes coverage under the policy.

The Firearms Exclusion

Further, the insurance policy’s “firearms” exclusion states, “[t]his insurance does not apply to “bodily injury,” “property damage,” “personal injury,” “advertising injury” or medical payments arising out of the ownership, rental, maintenance, use or misuse of any firearms.”

Here too, the plaintiff contends that the exclusion is ambiguous because it does not exclude coverage for wrongful death or death resulting from the commission of a felony. We find the plaintiffs argument to be without merit. The record indicates that the plaintiffs claims arise out of the allegations that Angelle used a firearm to shoot Mr. Williams on the premises of the Quality Lounge. Applying the principles of Ledbetter, 665 So.2d 1166, and Bennett, 907 So.2d 116, we conclude that the terms of the policy are clear and unambiguous. Therefore, we find that there was no error in the trial court’s determination that coverage is precluded under the policy’s firearms exclusion.

This assignment of error is without merit.

Request for Sanctions

In brief, Markel requests sanctions and penalties for the plaintiffs alleged failure to abide by Uniform Rules — Courts of Appeal, Rule 2-14.1 and Uniform Rules— Courts of Appeal, Rule 2-14.2. Markel alleges that the information listed in the plaintiffs certificate of service is incorrect. Markel also alleges that it received a copy of the plaintiffs brief “more than a week after it was filed,” and only after Markel’s attorney made several telephone requests for a copy. Counsellor the plaintiff contends that he accidentally sent a copy of the brief to another attorney instead of Markel’s attorney. He argues that Markel was “never impaired or harmed by this minor clerical oversight” and that he should not be penalized.

Uniform Rules — Courts of Appeal, Rule 2-14.1 provides that “[Ilegible copies of all papers filed in a Court of Appeal by any party shall, at or before the time of filing, be delivered or mailed by the party to all other parties, or counsel of record.” Uniform Rules — Courts of Appeal, Rule 2-14.2 further requires that a “certificate listing all parties and all counsel, indicating the parties each represents, and showing how and when such service was accomplished” shall be included. Neither Rule 2-14.1 nor Rule 2-14.2 authorizes sanctions for a party’s failure to comply with their requirements. Furthermore, Markel’s request is made in its appellate brief, not by the filing of a motion. See Newman v. Richard Price Constr., 02-995 (La.App. 1 Cir 8/8/03), 859 So.2d 136; Econ. Auto Salvage Inc. v. Allstate Ins. Co., 499 So.2d 963 (La.App. 3 Cir.), writ denied, 501 So.2d 199 (La.1986) (finding that a motion to strike is the proper procedural device to strike improper evidence from the appellate record). Accordingly, we grant no relief in this assignment.

Motion to Dismiss

In its appellate brief, Markel contends that this appeal should be dismissed as premature due to a pending motion to dismiss filed in the trial court. Markel asserts that its motion to dismiss was filed after Mrs. Williams failed to timely pay the estimated costs of the appeal. However, both parties state in their briefs to this court that the costs were paid on February 1. 2011. Mrs. Williams filed a reply brief opposing the request to dismiss the appeal.

|9The record indicates that the motion to dismiss was filed in the trial court and that the related hearing was continued until March 21, 2011. Although the record was lodged in this court on February 28, 2011, it is silent as to any further actions taken on the motion to dismiss. However, according to the parties, the appeal costs were paid prior to any hearing on the motion. See La. Bd. of Massage Therapy v. Fontenot, 04-1525 (La.App. 3 Cir. 5/4/05), 901 So.2d 1232. In light of the procedural posture in which this matter now appears before this court, we do not address Markel’s contention that this appeal should be appropriately dismissed insofar as the issue became moot upon the payment of costs. Id.

DECREE

For the foregoing reasons, we affirm the summary judgment of the trial court finding that there is no coverage under the commercial general liability policy, number GGAGL 3373, issued by Markel International Insurance Company, Ltd. to Theresa Dean d/b/a Quality Lounge for the plaintiffs claims as a matter of law and dismissing all claims against Markel International Insurance Company, Ltd. Costs are assessed to the plaintiff, Naomi Williams. We grant no relief as to the intervenor’s requests for dismissal and sanctions.

AFFIRMED.

      . The trial court’s judgment, signed August 30, 2010, states that the trial court "finds that there is no coverage under the commercial general liability policy, number GGAGL 3373, issued by Markel International Insurance Company, Ltd. to Theresa Dean d/b/a Quality Lounge for Plaintiff’s claims as a matter of law and that all claims against Markel International Insurance Company, Ltd. are dismissed, with prejudice, at Plaintiff’s cost.”

      . Pursuant to Uniform Rules-Courts of Appeal, Rules 2-7.1 and 2-7.2, the Courts of Appeal may consider motions.

      . We note too that Markel did not file a motion to dismiss in this court urging that the appeal was premature. Instead, it only advances this argument in its brief. See Fontenot, 901 So.2d 1232; Richards v. Everett, 509 So.2d 851 (La.App. 4 Cir. 1987).


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    SIEMENS WATER TECHNOLOGIES CORP. v. REVO WATER SYSTEMS, LLC, et al.
    No. 11-248.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Alan K. Breaud, Breaud & Meyers, Lafayette, LA, for Plaintiff/Appellee, Siemens Water Technologies Corp.
    Russell Joseph States Jr., States & Lav-ergne, LLC, Lake Charles, LA, Shawn A. Carter, Durio, McGoffin, Stagg & Acker-man, Lafayette, LA, for Defendants/Appellants, Revo Water Systems, LLC, Jacob J. David.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

liThe defendants/appellants, Jacob J. David and Revo Water Systems, L.L.C. appeal a jury verdict in favor of Siemens Water Technologies Corp. (Siemens) awarding Siemens monetary damages and injunctive relief. For the reasons that follow, we affirm as amended.

FACTS

David was employed by Pure Water Solutions. In 2004, Pure Water Solutions was acquired by another business, Monosep Corporation. In 2004, David signed a confidentiality agreement with Monosep, which provided:

(b) The term “Confidential Information” shall mean all information (whether or not specifically labeled or identified as confidential), in any form or medium, that is disclosed to, or developed or learned by, Employee in the performance of duties for the Company and that related to the present or planned business, trade secrets, products, services, customers and customers list, employees, price and cost information, marketing information, financial plans, research, research programs, apparatus, processes, techniques, technologies or developments of the Company or its subsidiaries or affiliates, or of third parties (i) with whom the Company or its subsidiaries or affiliates does business, or is preparing to do business, or (ii) from whom the Company or its subsidiaries or affiliates receives or has received information.

David was Monosep’s representative for selling or leasing of portable reverse osmosis water desalination units (RO units) used on offshore facilities to produce potable water. In December 2005, Monosep was acquired by Siemens, then doing business as U.S. Filter Siemens.

The design of the RO unit was developed in the late 90s by Jason Badeaux, an employee of Pure Water Systems. In June 2006, David asked Badeaux if he could observe and assist in the construction of a unit. David’s stated reason for wanting to observe and help was that greater knowledge of the unit would make him a better salesman. David was allowed to assist in the fabrication of a unit 12being prepared for Shell Oil Company, one of David’s customers. David submitted his resignation to Siemens in September 2006. Revo Water Systems was formed in December 2006 and entered the RO unit market in March 2007.

In mid-2008, Michael Robicheaux, the former owner of Monosep and under contract to Siemens, noticed that the RO unit business was slowing. He requested a market analysis be performed, but left Siemens before the results were reported. In July 2008, Badeaux was contacted about a problem with a RO unit at a location he was certain no Siemens unit had been leased to. He dispatched a Siemens technician to the location. That technician verified that the unit was not built by Siemens, but by a company known as Revo Water Systems. Further investigation by Badeaux convinced him that the Revo unit was a copy of the Siemens units.

Siemens instituted suit against Revo and David for breach of the confidentiality agreement, violation of the Uniform Trade Secrets Act (La.R.S. 51:1341, et seq), and “trade dress” infringement. The suit sought monetary damages and a permanent injunction. During the course of discovery, Siemens discovered that schematics of the electrical components of its unit were in David’s possession, and that in March 2006, David had forwarded these diagrams to Presley Turner, with whom he founded Revo. However, it appears from the evidence that Turner was unable to print the schematics. They were nonetheless printed at some point. According to several witnesses, the wiring of the Revo unit was copied from the Siemens unit.

The matter went to trial before a jury in June 2010. The jury returned a verdict in favor of Siemens and against Revo and David. The jury found that Siemens held trade secret information regarding the RO unit; that Revo and David improperly, willfully, and maliciously took those trade secrets; and that Revo and |sDavid engaged in unfair trade practices. Siemens was awarded $1,482,000 in damages. It is from this judgment that Revo and David appeal.

ASSIGNMENTS OF ERROR

Revo and David assign the following errors:

1. The jury’s findings that Plaintiff held trade secret information related to its reverse osmosis units and that Defendants willfully, maliciously, and improperly took such information were incorrect.
2. The jury erroneously found that Defendants engaged in unfair trade practices and unfair competition with respect to Siemens.
3. The jury’s damage award was incorrect because it was not supported by the facts or law.
4. The trial court erred in denying Defendants’ motion for directed verdict.
5. The trial court erred in denying Defendants’ motion for judgment notwithstanding the verdict and/or motion for new trial.
6. The trial court erred in granting Plaintiffs request for an injunction against Defendants.
7. The trial court erred in allowing royalties beyond the trial date to be awarded to Plaintiff.

At oral argument, the parties stipulated that the issues addressed by assignments of error six and seven have been resolved. Further, no judgment was ever signed by the trial court, although the trial court ruled on these issues. We deem assignments of error six and seven abandoned.

ANALYSIS

The first two assignments of error address findings of fact on the jury’s part. These are reviewed on appeal under the manifest error standard. In ascertaining whether the fact finder’s determinations are manifestly erroneous, the court of appeal will look at the record to determine whether a reasonable factual basis exists for the finding and then determine whether the record establishes that the finding is clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). The issue we must resolve, then, is not whether the jury was right or wrong, but whether is conclusions were reasonable. Id. Even if we feel that our evaluations and inferences are more reasonable than the jury’s, we must still uphold the verdict where there are conflicting accounts in the record. Id. A reasonable basis for findings of fact in the record precludes us from reversing those findings. Id.

We find that a reasonable basis does exist in the record to support the jury’s findings. The timing of David’s departure from Siemens after e-mailing the wiring schematics to his future co-member of Revo, Turner, coupled with his expression of interest in learning how the units are constructed shortly before he departed Siemens, lends credence to the notion that in the months leading up to his departure, David was preparing to enter into direct competition with Siemens using Siemens’ own schematics and methods. The fact that David contacted an attorney to determine whether entering into competition with Siemens by copying Siemens’ units bolsters this notion. There certainly were explanations by David for his conduct and the actual innocence of his actions, but these were subject to the jury’s determinations of credibility. Apparently, the jury did not believe David’s explanations. There was no manifest error in the jury’s determinations regarding the existence and protection of a trade secret by Siemens or regarding their misappropriation by appellants.

The third assignment of error addresses whether Siemens supported its claim for damages. Siemens introduced into evidence proof of the profits generated by Revo. It offered no proof of any loss of its own. Appellants contend that Siemens must prove that it was damaged.

Misappropriation of trade secrets is governed by the Uniform Trade Secrets Act. Louisiana Revised Statute 51:1433 provides that, in addition to injunctive | ^relief, a complainant under the act may recover damages for actual loss and for the unjust enrichment caused by misappropriation. Appellants contend that Siemens is not entitled to recovery for unjust enrichment because of limitations upon that theory of recovery found in the Louisiana Civil Code. Article 2298 of the Civil Code provides that the remedy for unjust enrichment is “subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.” This seems to preclude for recovery for unjust enrichment because other remedies exist for Siemens, but for the fact that La.R.S. 51:1433 specifically allows for it. The more specific statute controls.

One proper measure of damages for misappropriation of a trade secret is the profit derived from the misappropriation. Profits, being susceptible of calculation, are reviewed under the manifest error-clearly wrong standard, rather than the more deferential abuse of discretion standard. See Raphael v. Raphael, 05-1403 (La.App. 3 Cir. 5/3/06), 929 So.2d 825. Indeed, in this matter, the profit realized by Revo was reduced in a clearly written and understandable format. On cross-examination, David authenticated the balance sheet of Revo, which indicated a profit of $883,962.71. This was the only evidence presented regarding Revo’s profit. However, several expenses claimed by Revo were argued by Siemens to be personal expenses of David’s, including the cost of a motor home, the cost of a duck hunting lease, fees paid to a duck hunting guide, and meals and entertainment expenses in excess of $210,000.00 over a roughly three year period. It appears that the jury concluded that Siemens was correct and these expenses should be considered in determining Revo’s actual net profit. The jury apparently also extrapolated additional profits from the April 22, 2010 end date of the balance sheet through the June 2010 trial.

IfiWe are unable to ascertain from the record the method by which the jury arrived at the figure it awarded. The record does not support the finding that any of Revo’s expenses were not business related. For instance, David was questioned about the company’s claim for expenses associated with the motor home. He testified that he used the motor home to entertain clients by taking them to football games and other recreational pursuits. He also testified that the duck lease and guide served to entertain clients. These expenses allowed Revo to cultivate relationships with clients, which in turn led to more business. This testimony was uncon-tradicted. Only the argument of counsel suggested the illegitimacy of the expenses. We find the jury was clearly wrong in its calculation of damages of $1,482,000.00 when the evidence presented demonstrated a maximum profit of $928,160.84.

Revo posted a 40-month profit of $883,962.71. This would yield a monthly profit of $22,099.07. We agree that the jury properly extrapolated the profits from the end date of the balance sheet through the date of trial. Accordingly, we amend the jury’s award in favor of Siemens and against Revo to $928,160.84.

Appellants further argue that even if unjust enrichment is available to Siemens, La.R.S. 51:1433 limits it to the time it would have taken Revo to discover the trade secret without David’s misappropriation. They base this argument on comment (a) of section 1433. We note, however, that the statute’s wording does not support this interpretation. It provides, “A complainant also may recover for the unjust enrichment caused by misappropriation that is not taken into account in computing damages for actual loss.” Nothing in the wording of section 1433 limits the unjust enrichment element other than prohibiting double recovery. Additionally, had the legislature intended to limit the unjust enrichment, it could easily have done so as it limited the time during which injunctive relief may be 17granted in such cases. See La.R.S. 51:1432. Accordingly, while it is true that, as testified to by Mr. Larry Blanchette, an engineer with Associated Design Group, a consulting engineer could have developed a competing design at a minimal cost, it is equally true that Revo did not undertake such a process and instead chose to profit from more expedient means.

This assignment of error is without merit.

Our determinations regarding the jury’s verdict on assignments of error one through three renders assignments of error four and five moot.

CONCLUSION

The jury’s findings on the misappropriation of trade secrets and damages are subject to review under the manifest error standard. We find that a reasonable basis exists in the record to support the jury’s findings. The judgment is affirmed, but we amend the jury’s award in favor of Siemens and against Revo to $928,160.84. Costs of this appeal are taxed to appellants, Jacob David and Revo Water Systems, L.L.C.

AFFIRMED AS AMENDED.


author: THIBODEAUX, Chief Judge.

text:
    Timothy Hugh QUEEN v. O.S. NUGENT.
    No. 11-257.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Robert C. McCorquodale, In-House Counsel, Charles, LA, for Defendant/Ap-pellee, O.S. Nugent, Asst. Warden.
    Timothy Hugh Queen, In Proper Person, Lake Charles, LA, Plaintiff/Appellant.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

_JjA pre-trial detainee in the Calcasieu Parish Correctional Facilities (“CPCF”), Timothy Hugh Queen (“Queen”), appeals the judgment of the trial court granting the peremptory exception of no cause of action filed by Assistant Warden O.S. Nu-gent (“Defendant”), an employee of the Calcasieu Parish Sheriffs Office. The exception asserted that Queen did not have a cause of action to review an administrative disciplinary decision made by a facility that is not part of the Department of Public Safety and Corrections (“DOC”). We affirm.

I.

ISSUE

We must decide whether the trial court erred in granting the peremptory exception of no cause of action.

II.

FACTS AND PROCEDURAL HISTORY

Queen is housed in the CPCF awaiting trial. The CPCF is operated by the Calca-sieu Parish Sheriff (“Sheriff’). While at the CPCF, Queen was served with a disciplinary report, alleging he participated in a telephone scam. Queen went through an administrative proceeding and was disciplined. Queen appealed the disciplinary board’s ruling to the Fourteenth Judicial District Court.

Defendant filed an exception of no cause of action, which was granted by the trial court. Queen now appeals the trial court’s judgment.

III.

LAW AND DISCUSSION

Standard of Review

We review a judgment granting a peremptory exception of no cause of action de novo. It requires a determination of “whether the law affords a remedy |2on the facts alleged in the pleading.” Ramey v. DeCaire, 03-1299, p. 7 (La.3/19/04), 869 So.2d 114, 118. The “pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief.” Id. at 119 (citation omitted).

Discussion

Queen contends that the trial court erred in granting the exception of no cause of action. Specifically, Queen contends the trial court erred in finding that he was not entitled to judicial review under La.R.S. 15:1177.

Defendant argues that Queen has no cause of action to challenge the administrative proceeding because at all relevant times, he was a parish pre-trial inmate and not a DOC inmate. Defendant contends that La.R.S. 15:1177 provides only for review of “an adverse decision ... by the Department of Public Safety and Corrections or a contractor operating a private prison facility.” La.R.S. 15:1177(A). We agree.

While La.R.S. 15:1177 mentions inmates in the custody of the sheriff, it does not provide for judicial review of sheriffs’ procedures. Moreover, the statute is clear that the DOC is the only proper party defendant for such actions. La.R.S. 15:1177(A)(l)(b). Queen, however, names Assistant Warden Nugent as the defendant. Our colleagues in the second circuit specifically addressed the issue of the proper party defendant in Winston v. Martin, 34,195, 34,200, p. 4 (La.App. 2 Cir. 7/6/00), 764 So .2d 368, 371:

Both the title of the act, as well as the provisions of R.S. 15:1177, show that the provisions apply strictly to causes of action against the State of Louisiana, Department of Public Safety and Corrections, or its employees. And while the kinds of complaints and grievances falling under these provisions are broad in scope, the provisions plainly do not apply to individuals who are not employees of the Louisiana Department of Public Safety and Corrections.

lain further support of his position, Queen argues that La.R.S. 15:1177 defines “offender” in such a way as to bring him under the purview of the statute. Even if this were the case, it does not mean he is entitled to judicial review under La.R.S. 15:1177. We recognize that the first circuit reached a contrary conclusion, stating:

[Tjhis interpretation, which if carried to its logical conclusion seems to imply that some inmates housed in parish prisons are governed by the Department of Corrections’ administrative remedy procedure and others in the same facility are governed by the Parish Prison’s procedure. We believe that the statute, while clumsily phrased, does provide for judicial review of an adverse decision “rendered pursuant to any administrative remedy procedure under [the CARP],” including procedures adopted by sheriffs. LSA 15:1177(A) (emphasis added).

Spooner v. E. Baton Rouge Parish Sheriff Dep’t, 01-2663, p. 6 (La.App. 1 Cir. 11/8/02), 835 So.2d 709, 713. We disagree with the first circuit’s reasoning.

Moreover, a complete review of the record indicates that Queen has no valid cause of action for his underlying claim, regardless of the statute referenced or the terminology applied. Louisiana Revised Statutes 15:1177 is referenced on the standard form Queen used to complete his petition for judicial review. His handwritten request for oral argument also references La.R.S. 15:1177 but indicates that Queen is challenging judicial review of Defendant’s administrative decisions leading to Queen’s subsequent punishment.

It is clear that Queen does not have a cause of action under La.R.S. 15:1177 because the statute provides only for review of an adverse decision by the DOC or a contractor operating a private prison facility. Nevertheless, given Queen’s status as a pro se litigant, we consider whether he otherwise stated a valid cause of action. “[A] pro se litigant who lacks formal training in the law and its rules of procedure ... should be allotted more latitude than those plaintiffs represented by counsel.” Brooks v. Tradesmen Int'l, Inc., 03-1871, p. 5 (La.App. 4 |4Cir. 9/1/04), 883 So.2d 444, 447, writ denied, 04-2432 (La.12/10/04), 888 So.2d 843.

In Queen v. Tete, an unpublished opinion bearing docket number 10-1435, pp. 2-3 (La.App. 3 Cir. 6/22/11), 66 So.3d 86, this court stated:

Review of correctional institutions’ administrative and disciplinary decisions are governed by Title 15, Part XV, Chapter 7 of the Louisiana Revised Statutes. Review of sheriffs’ administrative decisions are governed by La.R.S. 15:1171. Louisiana Revised Statutes 15:1171 allows a sheriff to adopt an administrative remedy procedure for receiving, hearing, and disposing of any and all complaints and grievances by adult or juvenile offenders against a sheriff or a sheriffs staff. It further provides that the administrative procedures are the exclusive remedy available to the offender for all complaints and grievances, except in tort actions. See Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713.

Because Queen does not assert a tort-based claim, his sole remedy, pursuant to La.R.S. 15:1171, is to follow the administrative proceedings set forth by the Sheriff for the CPCF. He is barred from seeking judicial review of Defendant’s administrative proceedings in district court.

Accordingly, we find no error in the trial court’s judgment granting the exception of no cause of action in favor of Defendant.

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial court.

AFFIRMED.

      . We entertain serious concerns about the frivolous nature of Queen's appeal given that he has stubbornly pursued nearly identical claims on two previous occasions. Defendant, however, failed to answer and seek damages against Queen.


author: AMY, Judge.

text:
    BRIELLE’S FLORIST & GIFTS, INC. v. TRANS TECH, INC.
    No. 11-260.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Randall L. Guidry, Lafayette, LA, for Defendant/Appellee, Trans Tech, Inc.

      Richard Mary, Richard Mary and Associates, Baton Rouge, LA, for Plaintiff/Appellant, Brielle’s Florist & Gifts, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

11 This case arises from the plaintiffs lease of several buses to the defendant. After the defendant allegedly failed to maintain the buses free of damage, the plaintiff brought suit, seeking remuneration for the damages. The defendant filed exceptions of res judicata, no cause of action, and no right of action, alleging that a settlement had been reached in prior litigation. The trial court granted the exceptions. For the following reasons, we reverse and remand.

Factual and Procedural Background

The plaintiff, Brielle’s Florist <& Gifts, Inc. filed suit, alleging that the defendant, Trans Tech, Inc., breached its lease with Brielle’s by failing to maintain the leased property free of damage. Trans Tech subsequently filed exceptions of res judicata and “no cause and/or no right of action,” contending that the alleged breach of lease issue had been resolved by settlement in prior litigation. Trans Tech’s contention, according to the record, was that Mark Chiasson had filed suit against Trans Tech, seeking both the appointment of a receiver and liquidation. According to Trans Tech, a settlement agreement was reached that released all claims by or against Brielle’s. The parties’ briefs indicate that no formal settlement agreement was signed but that the trial court in that case ordered that the case be settled “in strict conformity to the terms of the settlement agreement.” Brielle’s contended that the settlement agreement was not enforceable against it because it was not a named party to that litigation.

The trial court held a hearing on the exceptions and granted the exceptions of res judicata, no cause of action and/or no right of action. Although the |2transcript indicates that the trial court considered the settlement agreement and the judgment enforcing the settlement agreement, neither document was introduced into evidence nor is either contained within the appellate record. The only copies of either the settlement agreement or the minutes of the trial court ordering enforcement of the settlement agreement are attached to Trans Tech’s brief to this court. Trans Tech also indicates in its appellate brief that those documents were attached to the brief it submitted to the trial court in support of its exceptions.

Brielle’s appeals, alleging that the trial court erred in granting the exception of res judicata and the exception of “no right of action and/or no cause of action.”

Discussion

Peremptory Exception of Res Judicata

The exception of res judicata acts to bar a subsequent judgment when there is a prior case that involves the same parties and the same cause of action, and the previous judgment was a final judgment on the merits rendered by a court of competent jurisdiction. La.Code Civ.P. art. 927; Zeno v. Flowers Baking Co., 10-1413 (La. App. 3 Cir. 4/6/11), 62 So.3d 303. The party urging an exception of res judicata must prove its elements by a preponderance of the evidence. Rudolph v. D.R.D. Towing Co., LLC, 10-629 (La.App. 5 Cir. 1/11/11), 59 So.3d 1274. Louisiana Code of Civil Procedure Article 931 permits the introduction of evidence at the trial of a peremptory exception “to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.”

In the case of an exception of res judicata, the trial court should examine “not only the pleadings but also the entire record in the first suit, to determine whether the second suit is, in fact, barred by res judicata.” Union Planters Bank v. Commercial Capital Holding Corp., 04-871, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. Further, the failure to introduce such documentary evidence into the record can prohibit the party pleading the exception from meeting its burden of proof. Id. See also Fogleman v. Meaux Surface Prot., Inc., 10-1210 (La.App. 3 Cir. 3/9/11), 58 So.3d 1057, writ denied, 11-712 (La.5/27/11), 63 So.3d 995.

Exceptions of No Cause of Action and/or No Right of Action

With regard to the exceptions of no cause of action and/or no right of action, the supreme court has stated that:

Although these two exceptions are often confused or improperly combined with the same exception, the peremptory exceptions of no right of action and no cause of action are separate and distinct. [La.Code Civ.P.] art. 927(A)(4) and (5); Industrial Cos., Inc. v. Durbin, 02-0665, p. 6 (La.1/28/03); 837 So.2d 1207, 1212. This court has recognized that one of the primary differences between the exception of no right of action and no cause of action lies in the fact that the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant. Id.
The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. [La.Code Civ.P.] art. 927; Turner v. Busby, 03-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.
In contrast, an exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Industrial Cos., ... 837 So.2d at 1213.

Badeaux v. Sw. Computer Bureau, Inc., 05-612, 05-719, pp. 6-7 (La.3/17/06), 929 So.2d 1211, 1216-17.

No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ.P. art. 931. The exception of no cause of action is triable on the face of the pleadings and, for the purposes of |4the exception, the well-pleaded facts in the petition are accepted as true. Robertson v. Sun Life Fin., 09-2275 (La.App. 1 Cir. 6/11/10), 40 So.3d 507. However, “[u]nlike the exception of no cause of action, evidence may be received under the exception of no right of action for the purpose of showing that the plaintiff does not possess the right he claims or that the right does not exist.” Id. at 511.

Evidence Not Filed into the Record

The supreme court addressed the ability of the courts of appeal to consider evidence not formally filed into the record in Denoux v. Vessel Management Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84. The supreme court stated:

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memo-randa do not constitute evidence and cannot be considered as such on appeal.
Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.

Id. at 88 (citations omitted). Further, the courts of appeal have no authority to consider facts, memoranda or exhibits referred to in the appellate briefs if they are not in the appellate record. Jones v. Jones, 09-757 (La.App. 5 Cir. 12/29/09), 30 So.3d 137.

Although the underlying ruling was clearly based on the settlement agreement and judgment, those documents were not formally entered into evidence and are thus not part of the record before this court. Instead, copies of those documents are only attached to Trans Tech’s brief and cannot be considered as evidence on appeal. Thus, because no evidence of the prior suit appears in the record, and the grounds for the exceptions of res judicata and no right of action do not appear from the petition, the trial court erred in granting those exceptions. Therefore, we reverse the judgment of the trial court sustaining the exceptions of [ Sres judicata and no right of action. See Rudolph, 59 So.3d 1274; Union Planters Bank, 907 So.2d 129.

Further, with regard to the exception of no cause of action, the fourth circuit has found that, where the petition alleged facts that, taken as true, would establish that: “(1) a lease existed; (2) the lease provided certain duties among the parties; and (3) the defendants breached those duties[.]” this was sufficient to support a cause of action against the defendants. R-Plex Enters., LLC. v. Desvignes, 10-1337, p. 6-7 (La.App. 4 Cir. 2/9/11), 61 So.3d 37, 41. Assuming as true the facts alleged by Brielle’s in its petition, Brielle’s has alleged that a lease existed between the parties regarding the buses, that it provided that Trans Tech maintain the buses free of damage, and that Trans Tech did, in fact, allow damage to the buses. Therefore, in light of the alleged facts, the trial court erred in granting the exception of no cause of action. We reverse the judgment of the trial court granting the exception of no cause of action.

DECREE

For the foregoing reasons, the judgment of the trial court granting the exceptions of res judicata, no cause of action and/or no right of action is reversed. The case is remanded for further proceedings. Costs of this appeal are assessed to Trans Tech, Inc.

REVERSED AND REMANDED.

      . At the hearing on the exceptions, Trans Tech contended that Brielle's is wholly owned by Chiasson and that Chiasson is the president of Brielle's.

      . At the hearing, the trial court indicated it was granting the exceptions of "res judicata and/or no right of action.” However, the judgment indicates that the trial court granted the exceptions of res judicata, no cause of action and/or no right of action.


text:
    Lori JOHNSON v. David John ST. ROMAIN, et al.
    No. 11-266.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      David A. Hughes, Hughes Law Firm, Alexandria, LA, for Defendants/Appellants, Shelter Mutual Insurance Company, David John St. Romain.
    Russell L. Potter, Stafford, Stewart, & Potter, Alexandria, LA, for Defendants/Appellees, Economy Premier Assurance Company, Debra Morgan.
    Cory P. Roy, Marksville, LA, for Plaintiff/Appellee, Lori Johnson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

11 After the plaintiff was involved in an automobile accident, she filed suit against the other two drivers and their insurance companies, seeking damages for injuries she allegedly incurred as a result of the accident. The plaintiff dismissed one of the drivers after reaching a settlement agreement. The case proceeded to trial on the issue of liability and damages attributed to the remaining defendant. The trial court found the remaining defendant to be solely at fault for the accident and awarded the plaintiff damages for pain and suffering, past medical bills, and past and future lost wages. The remaining defendant and his insurer appeal the finding of sole liability and the amount of damages. For the following reasons, we affirm in part and reverse in part.

Factual and Procedural Background

The plaintiff, Lori Johnson, alleges that she was injured as the result of an automobile accident. Johnson filed suit against the other two drivers, Debra Morgan and David John St. Romain, as well as their insurers.

When the matter proceeded to trial, only St. Romain and his insurer, Shelter Mutual Insurance Company, remained as defendants. The trial court found that St. Ro-main was “100% liable and at fault” for the accident and awarded Johnson damages in the amount of $22,500.00 for pain and suffering, $848.71 for past medical bills, and $7,200.00 for past and future lost wages.

St. Romain and his insurer appeal, asserting as error:

I. The court erred in finding David St. Romain guilty of fault which was the sole cause of the accident.
II. The court erred in awarding Lori Johnson $7,200.00 for loss of income.
III. The court’s award of general damages in the amount of $22,500.00 is so excessive for the injuries sustained by the plaintiff to be an abuse of the court’s discretion.

12Discussion

Apportionment of Fault

In his first assignment of error, St. Romain contests the trial court’s determination that he was “100% liable and at fault” for the accident. St. Romain asserts that the evidence shows that Morgan struck Johnson’s vehicle first and that St. Romain then struck Morgan’s vehicle. He contends that at least 50% of the fault should have been apportioned to Morgan.

An appellate court reviews the trial court’s findings of fact under the manifest error-clearly wrong standard. Rosell v. ESCO, 549 So.2d 840 (La.1989). When those findings are based on the credibility of witnesses, the appellate court must give great deference to the trial court’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.” Id. at 844. If the witness’s story is so internally inconsistent or implausible on its face, or where documents or objective evidence so contradict the witness’s story that a reasonable fact finder would not credit the witness’s story, a reviewing court may find manifest error even in a finding ostensibly based upon a credibility determination. Id. However, where those factors are not present, and a fact finder’s determination 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.” Id. at 845.

The apportionment of fault is a factual determination subject to the manifest error-clearly wrong standard of review and, therefore the trier of fact has much discretion in apportioning fault. Lee v. Briggs, 08-2120 (La.App. 1 Cir. 9/10/09), 28 So.3d 362. “[T]he allocation of fault is not an exact science, nor is it the search for a precise ratio.” Layssard v. State, Dep’t of Pub. Safety and Corr., 07-78, p. 4 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, 1058, unit denied, 07-1821 (La.11/9/07), 967 So.2d 511. Instead, an appellate court, in reviewing the fact finder’s allocation of fault should determine whether the allocated fault falls within a certain range that does not violate the manifest error rule. Id. In order to disturb the award, the appellate court must first find that the trial court’s apportionment of fault is clearly wrong. Lee, 23 So.3d 362. Even then, the appellate court can only disturb the award to the extent of lowering it or raising it to the highest or lowest point, respectively, which is reasonably within the trial court’s discretion. Id.

Johnson testified that she was driving to Marksville, Louisiana on Louisiana Highway 1. A co-worker, Brian O’Neil Charles, was a passenger in the car. According to Johnson, she stopped behind a vehicle that was making a left-hand turn. Both Johnson and Charles indicated that, after a short period of time, they heard “squealing” noises and felt an impact to the rear of their vehicle. Johnson testified that she could see in her rear view mirror that she had been hit by an SUV. Both Johnson and Charles testified that they felt another impact some four to five seconds later.

The driver of the SUV, Debra Morgan, testified that she had stopped or almost stopped behind Johnson’s vehicle. According to Morgan, she also heard a “squealing” noise and the rear of her vehicle was struck by a pick-up truck. Morgan testified that the force of the impact pushed her forward into Johnson’s vehicle. Morgan did not mention a “second impact” and denied that she struck Johnson’s vehicle first. St. Romain was driving the pick-up truck that struck Morgan’s SUV. He testified that he took his eyes off the road for a second. According to St. Romain, he was approximately twenty feet away from Morgan’s [4vehicle when he first saw it. St. Romain then “slammed on the brakes,” skidded, and hit the rear of Morgan’s SUV.

The record indicates that, after the accident, Morgan was upset, shaking, and confused. There was conflicting testimony regarding whether Morgan apologized for the accident and/or said that she was not paying attention. Johnson and Charles both testified at their depositions, which were entered into evidence, that they felt Morgan had “changed her tune” regarding her own liability for the accident. However, at trial Johnson indicated that she could not be sure of who hit whom.

An officer from the Mansura Police Department responded to the scene of the accident. There was testimony that the officer initially indicated that he was going to issue a ticket to both Morgan and St. Romain for following too closely. Morgan testified that, after she told the officer that St. Romain’s vehicle struck hers, causing her to roll into Johnson’s vehicle, he only issued a ticket to St. Romain. St. Romain testified that he was ticketed for following too closely and that he pled guilty and paid the ticket.

The record indicates that there were two permissible views of the evidence. One view is that Morgan initially struck the rear of Johnson’s vehicle and St. Romain then struck Morgan’s vehicle, causing her to strike Johnson again. Another is that Morgan stopped, or almost stopped, her vehicle behind Johnson and that St. Ro-main struck Morgan’s vehicle, causing Morgan to strike Johnson’s vehicle.

St. Romain admitted that he had taken his eyes off the road and that he did not have enough time to stop before he hit Morgan’s vehicle. The responding officer only ticketed St. Romain in connection with the accident, and St. Romain pled guilty and paid the ticket. Further, there was testimony that Morgan denied liability to the responding officer. By the time of trial, Morgan had already | ¡¡reached a settlement with Johnson and had been dismissed from the case. She also testified that she had not filed a claim or suit for her personal injuries, if any, from the accident.

The trial court clearly credited Morgan’s testimony that she had stopped, without striking Johnson’s vehicle, when St. Ro-main struck her vehicle and pushed it into Johnson’s vehicle. In light of this evidence, the record supports a conclusion that St. Romain was solely responsible for the accident. Given the vast deference given to the trial court’s findings of fact, we find no error in the trial court’s finding of liability and apportionment of fault solely to St. Romain.

This assignment of error is without merit.

Damage Award

The remainder of St. Romain’s assignments of error address the amount of damages awarded by the trial court. St. Ro-main contends that the trial court erred in awarding Johnson $7,200.00 in past and future lost wages and that the $22,500.00 general damages award was excessive.

General Damages

St. Romain contends that the award of $22,500.00 in general damages was excessive, given Johnson’s “minimal” injuries and conservative medical treatment. The premier case addressing the review of general damage awards is Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Therein, our supreme court stated that:

[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
|fi.... The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.

Id., at 1260 (citations omitted). In determining whether an abuse of discretion has been shown, the relevant evidence must be viewed in the light which offers the most support to the trial court’s judgment. Id.

The trial court gave lengthy findings of fact and reasons for judgment, stating:

Ms. Johnson testified that it’s her right shoulder that’s been problematic since the accident. She is right handed. She went through some detail. Her day to day activities and the fact that we are now in early November, 2010, some eight months since the accident and she is still having pain from symptoms. She did testify regarding being a horse, certified farrier, and losing income of approximately $400.00 per month in that industry. She tried on two occasions but was unable because of her shoulder complaints.... Horses seem to be important to her. She used to ride in the rodeo but hasn’t done it since the accident. Tried one time, was unable to complete. She used to breed and train horses. On the day to day she did discuss the pain at five on a zero to ten scale. She has eight horses, has to feed them.... She deals with the pain. I think it’s important not to penalize someone for not being a crybaby over their painful symptoms, but it doesn’t mean that they don’t have them. Sometimes the problems radiate into her neck area from the right shoulder pain. She does take Aleve over the counter about five times a month. Prior to the accident she’d only take something like that once every three or four months.

The trial court also reiterated Johnson’s medical history, noting that there were objective findings of injury by her physician at eight weeks after the accident. Further, the trial court compared and contrasted the facts of this case with several cases involving similar injuries, including Williams v. State, Dep’t of Wildlife and Fisheries, 95-2456 (La.App. 1 Cir. 11/20/96), 684 So.2d 1018, writ denied, 96-3069 (La.3/7/97), 689 So.2d 1372, and Gremillion v. Derks, 96-412 (La.App. 4 Cir. 11/18/96), 684 So.2d 492.

|7The trial court’s findings indicate that Johnson had at least eight weeks of conservative treatment for her injuries and had ongoing pain at the time of trial, approximately eight months after the accident. The symptoms were severe enough that they impaired Johnson’s day-to-day activities. Based on our review of the record, we find that the trial court’s award of general damages was not an abuse of discretion. See also Tubre v. State, Dep’t of Transp. & Dev., 96-1194 (La.App. 3 Cir. 4/2/97), 693 So.2d 1190, writs denied, 97-1913, 97-1916 (La.l 1/27/97), 703 So.2d 1307.

This assignment of error is without merit.

Special Damages

St. Romain contends that, because Johnson made a “guesstimate” as to the amount of money that she earned as a farrier, the trial court’s award of $7,200.00 was an abuse of discretion. A panel of this court addressed the assessment of lost earnings, a type of special damages, in Cottle v. Conagra Poultry Co., 06-1160 (La.App. 3 Cir. 3/14/07), 954 So.2d 255. The court stated:

Special damages, which are those damages that can be established to a reasonable mathematical certainty, include awards for past and future lost earnings. Myers v. Broussard, 96-1634 (La.App. 3 Cir. 5/21/97), 696 So.2d 88. When a trier of fact assesses special damages, the discretion is more limited or narrower than the discretion to assess general damages. Eddy v. Litton, 586 So.2d 670 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1203 (La.1992). The standard of review, however, is still that of abuse of discretion. Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70.
A plaintiff has the burden to prove that he or she sustained a loss of income. Carter v. State Farm Mut. Auto. Ins. Co., 548 So.2d 53 (La.App. 3 Cir.1989). An award for lost past wages can be calculated as the amount a plaintiff would have in all likelihood earned had he or she been able to work. Taylor v. Premier Ins. Co. of Mass., 98-1934, 98-1935 (La.App. 3 Cir. 6/30/99), 742 So.2d 35.

Id. at 258. In cases where there is no basis for a precise mathematical calculation of the amount of lost earnings, the trial court has the discretion to award a | ^reasonable amount of damages. Burrell v. Williams, 05-1625 (La.App. 1 Cir. 6/9/06), 938 So.2d 694. Further “[t]his may consist of a plaintiffs own testimony. However, to allow a plaintiff to recover damages for lost wages in the absence of independent support is highly speculative.” Turner v. Cleveland Trust Co., 95-2488, p. 22 (La.App. 4 Cir. 5/22/96), 686 So.2d 871, 880, writ denied, 96-1531 (La.9/27/96), 679 So.2d 1350, citing McDonough v. Royal Sonesta, Inc., 626 So.2d 438 (La.App. 4 Cir.1993).

The record indicates that Johnson, a probation officer, did not miss any time at her “regular” job. However, Johnson testified that she was a certified farrier and earned supplemental income by shoeing horses on the weekends. According to her testimony, Johnson was unable to continue her business as a farrier because the work involves supporting part of the horse’s weight, approximately twelve hundred pounds, on her injured shoulder. She testified that she had attempted to work twice since the accident but had been unable to finish.

Johnson estimated that she typically earned between $400.00 and $750.00 per month working as a farrier. She testified that she was unsure of the exact amount because it was a cash business and she did not keep records. Johnson also testified that she typically shoed six to eight horses each Saturday and, in her deposition, testified that she charged $35.00 per horse. However, Johnson also testified that she did not report her income from the farrier business as taxable income.

The trial court awarded “$400.00 per month for eighteen months regarding the lack of ability to perform the horse farrier business,” for a total of $7,200.00. In Mc-Donough, 626 So.2d 438, the fourth circuit found that a plaintiffs testimony regarding lost wages was highly speculative where the only evidence submitted in support of the lost wage claim was the testimony of the plaintiff, an attorney, and a |9list of prospective clients and the amounts she would have charged as a retainer. Here, Johnson herself was unsure of the amount earned from the farrier business and could only provide a self-described “guesstimate” as to her earnings. Further, Johnson admitted that she did not report the income on her taxes. Although the uncorroborated testimony of the plaintiff can support a lost wage award, based on the facts of this case, we find that Johnson’s testimony regarding the lost wage claim is insufficient. See Turner, 686 So.2d 871.

Thus, the trial court erred in awarding damages for lost wages.

DECREE

For the foregoing reasons, the judgment of the trial court awarding the plaintiff, Lori Johnson, $7,200.00 in damages for lost wages is reversed and set aside. In all other respects, the judgment of the trial court is affirmed. Costs are assessed to the appellants, David John St. Romain and Shelter Mutual Insurance Company.

AFFIRMED IN PART, REVERSED IN PART.

THIBODEAUX, Chief Judge, concurring.

      . Mr. Charles’ name has various spellings and permutations in the record; we use the form adopted in his deposition.

      . The record indicates that Morgan’s insurer filed suit against St. Romain and his insurer seeking subrogation for payments made for property damage.

      . See Cottle, 954 So.2d at 259 ("If [the plaintiff] did not consider her mileage as income when her income tax returns were prepared, we cannot consider that same mileage as part of her lost wages.”); Cooper v. Lacorte, 99-1726 (La.App. 4 Cir. 5/17/00), 775 So.2d 4, amended on rehearing on other grounds, (La. App. 4 Cir. 1/31/01), 775 So.2d 704 (Where the plaintiff testified that he lost wages from his grass-cutting business, but the defendant submitted evidence showing that the plaintiff had not reported any income in several years, the fourth circuit reversed the judgment of the trial court awarding damages for lost wages.).


text:
    Kenneth D. LOPEZ v. TOWN OF ZWOLLE.
    No. 11-287.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      George Arthur Flournoy, Flournoy & Doggett, Alexandria, LA, for Plaintiff/Ap-pellee, Kenneth D. Lopez.
    Joseph B. Stamey, Stamey & Miller, LLC, Natchitoches, LA, for Defendant/Appellant, Town of Zwolle.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

11 The Town of Zwolle (“Town”) appeals a judgment of an Office of Workers’ Compensation Judge (“WCJ”) awarding Mr. Lopez penalties and attorney fees in relation to Mr. Lopez’s disputed claim for compensation. Mr. Lopez answered, seeking an increase in attorney fees for the work necessitated by this appeal, an award of sanctions in accordance with La.R.S. 23:1201(1), and an increase in penalties in accordance with La.R.S. 23:1201(F). We amend and affirm the judgment of the WCJ by increasing the penalties assessed against the Town, and awarding Mr. Lopez an additional $4,000.00 in attorney fees for work done on appeal.

I.

ISSUES

We must decide whether:

(1) the WCJ erred in failing to determine that Mr. Lopez’s claims were outside the scope of his Form 1008 filing;
(2) the WCJ erred in determining that the Town issued late payments of indemnity benefits and in awarding penalties and attorney fees to Mr. Lopez for the Town’s late payments;
(3) the WCJ erred in determining that the Town acted arbitrarily and capriciously when it terminated Mr. Lopez’s temporary disability benefits;
(4) the WCJ erred in determining that the Town acted arbitrarily and capriciously when it failed to pay an outstanding pharmacy bill; and,
(5) the WCJ erred in assessing the Town attorney fees in the amount of $7,500.00.

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FACTS AND PROCEDURAL HISTORY

While employed by the Town in October 2002, Mr. Lopez injured his back by lifting an old freezer into a dump truck. The Town disputed Mr. Lopez’s claim and refused to pay any workers’ compensation benefits. Following a trial, the WCJ found that Mr. Lopez carried his burden of proving a work-related accident, his subsequent disability, and that the Town’s denial of the claim without adequate investigation was arbitrary and capricious. The WCJ awarded Mr. Lopez all back due weekly benefits, all medical expenses incurred in connection with the claimant’s injuries, and ordered the Town to pay for additional medical testing recommended by Mr. Lopez’s physicians. Moreover, the WCJ awarded Mr. Lopez penalties and attorney fees based on the Town’s actions in the matter. This court affirmed that judgment on appeal. See Lopez v. Town of Zwolle, 07-76 (La.App. 3 Cir. 7/5/07), 963 So.2d 1041.

Mr. Lopez subsequently filed the present claim alleging failure to furnish and/or provide authorization for proper medical treatment, non-payment and/or untimely payment of medical and travel related expenses, penalties and attorney fees, and legal interest on all awards from appropriate dates.

Following a trial, the WCJ rendered judgment against the Town and ordered that the Town pay the following: (1) penalties in the amount of $3,000.00 in accordance with La.R.S. 23:1201(G); (2) penalties in the amount of $4,000.00 in accordance with La.R.S. 23:1201(F); (3) attorney fees in the amount of $7,500.00 in accordance with La.R.S. 23:1201(J); (4) the outstanding balance to Medical Center Pharmacy in the amount of $302.97; and, (5) all costs of court.

The Town appeals the WCJ’s judgment, and Mr. Lopez answered the appeal.

jjn.

LAW AND DISCUSSION

Standard of Review

The WCJ’s findings of fact are reviewed under the “manifest error” or “clearly wrong standard.” Dean v. Southmark Constr., 03-1051 (La.7/6/04), 879 So.2d 112. We cannot disturb the WCJ’s findings of fact as long as they are reasonable and supported by the record. Id. The WCJ’s findings as to whether the claimant has met his burden of proof are factual and cannot be disturbed on review unless clearly wrong or manifestly erroneous. Stutes v. Koch Servs., Inc., 94-782 (La.App. 3 Cir. 12/7/94), 649 So.2d 987, writ denied, 95-846 (La.5/5/95), 654 So.2d 335.

Scope of the Pleadings

The Town asserts that the WCJ erred allowing Mr. Lopez, over the Town’s objections, to present evidence on the issue of late indemnity payments because that specific issue was not alleged in Mr. Lopez’s Form 1008 filing. We disagree. “The function of fact pleading is to advise the opposing litigant of the material facts which constitute the cause of action so that he may not be surprised or unprepared for trial.” Charlida, Inc. v. Superior Oil Co., 469 So.2d 448, 450 (La.App. 3 Cir.1985).

Though Mr. Lopez did not specifically amend his pleadings before trial, the record is clear that the Town had notice of the late payment issue prior to trial, thus avoiding any prejudice or surprise. Indeed, the notice requirement was satisfied in two ways. First, the Town was placed on notice about the issue by Mr. Lopez’s pre-trial statement. His pre-trial statement specifically states as an issue: “Penalties and attorney fees due to untimely payments of indemnity benefits and nonpayment of medical expenses.” Second, on the day of trial, both the WCJ and 14counseI for the Town acknowledged their awareness that late payment of indemnity benefits was an issue that needed to be addressed. Specifically, the WCJ stated, “the matters pending before the court this morning are ... issues involving late or non-payment of indemnity benefits.” Counsel for the Town responded, “Yes, sir.” The Town’s acquiescence to the WCJ’s statement of the issues of the case, including the issue of late payment of indemnity benefits, served as a waiver of any objection the Town had to consideration of that issue by the WCJ. Thus, we find no evidence that the Town was prejudiced either by Mr. Lopez’s failure, in his original pleadings, to specifically raise the issue of late payment of indemnity benefits or his failure to amend his pleadings. It appears that the Town’s objections are merely an eleventh-hour effort to escape liability on an issue of which the Town was aware. We conclude that the WCJ did not err in allowing testimony on that issue.

Timeliness of Indemnity Benefit Payments

The Town contends that even if the WCJ properly considered the issue of late indemnity payments, the payments themselves were not “late” under the applicable law, and the WCJ erred in assessing penalties and fees for late payments. We find no merit in the Town’s contention. Louisiana Revised Statutes 23:1201 governs the time and place of payment of indemnity benefits:

Payments of compensation under this Chapter shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident; however, when the employee is not living at the place where the wages were paid, or is absent therefrom, such payments shall be made by mail, upon the employee giving to the employer a sufficient mailing address.

La.R.S. 23:1201(A)(1).

Here, the testimony and exhibits offered at trial establishes that the Town mailed Mr. Lopez’s indemnity payments on the same day other employees |sroutinely received payment in the office. Accordingly, Mr. Lopez routinely received his payment after his co-workers. We conclude the Town’s method of payment to Mr. Lopez violated the statute’s prohibition against “late” payments. Moreover, nothing in the record suggests that any administrative impediments existed that prohibited the Town from mailing the checks earlier, thus increasing the likelihood that Mr. Lopez would have received his payment nearer to the time he would have received the payment had he not been injured. Thus, we find no merit in this assignment of error asserted by the Town.

Termination of Benefits

The Town also seeks reversal of the WCJ’s finding that the Town improperly terminated Mr. Lopez’s benefits. We find no merit in the Town’s assertion. We disagree, however, with the WCJ’s reasoning and, thus, increase the penalties assessed against the Town to $8,000.00 for the improper termination of Mr. Lopez’s benefits.

The record indicates that following a conversation with Mr. Lopez, an adjuster with Risk Management, Inc. (“RMI”), the Town’s insurer, terminated Mr. Lopez’s temporary disability benefits. Mr. Lopez argued that the termination of his benefits was arbitrary and capricious. The WCJ agreed and awarded Mr. Lopez a penalty of $3,000.00. In reaching this decision, the WCJ applied La.R.S. 23:1201(G), relying on this court’s opinion in Cobb v. Lafayette Parish Sch. Bd., 10-430 (La.App. 3 Cir. 11/3/10), 49 So.3d 597, writ denied, 10-2692 (La.1/28/11), 56 So.3d 958. Though we agree with the WCJ’s ultimate conclusion that the Town erroneously terminated Mr. Lopez’s benefits, we find Cobb distinguishable.

Specifically, Cobb did not involve a dispute as to whether La.R.S. 23:1201(G) or La.R.S. 23:1201(1) applied. No analysis of that issue occurred. Instead, the specific issue considered in Cobb concerned the modification of a [ (-.stipulated judgment. Here, neither party makes the assertion that the lump sum amounts owed to Mr. Lopez as a result of our final judgment were never honored or paid. Section (G) of the statute refers to the timely payment of lump sum benefits, not to the continued payment of presently owed benefits. Because neither party is arguing over the accrued lump sum benefits, section (G) of the statute does not apply. Instead, we find that section (I) of the statute, which concerns the discontinuance of payment of claims due, applies. Section (I) provides for penalties not to exceed $8,000.00 for multiple violations. Thus, we increase the Town’s penalties to $8,000.00, for the arbitrary and capricious termination of Mr. Lopez’s benefits.

Moreover, we note that the WCJ’s underlying finding that the Town improperly terminated Mr. Lopez’s benefits was not manifestly erroneous. The WCJ made a credibility determination in considering the testimony of the RMI adjuster and the testimony of Mr. Lopez. The adjuster testified that Mr. Lopez told her he was returning to work. Mr. Lopez testified, however, that he never told the adjuster, “I’m working.” Instead, he testified that he only communicated the possibility of a job. The WCJ believed Mr. Lopez’s testimony, and we find nothing erroneous about that decision.

Unpaid Medical Expenses

The Town also challenges the WCJ’s finding that it owes a balance of $302.97 to Medical Center’s Pharmacy and the WCJ’s assessment of a $2,000.00 penalty for the unpaid pharmacy expense. The payment history confirms the unpaid pharmacy bill. Though witnesses for the Town testified that the balance was timely paid to the pharmacy, nothing in the record indicates that the Town |7contacted the pharmacy to dispute the bill. We conclude that the WCJ was not manifestly erroneous in finding that the Town never paid the balance to the pharmacy and in assessing a $2,000.00 penalty to the Town for that non-payment.

Attorney Fees

Finally, the Town asserts that the trial court erred in awarding attorney fees in this matter, or that, if attorney fees are awarded at all, the award should not exceed $2,500.00. In contrast, Mr. Lopez contends that the WCJ erred in awarding only $7,500.00 in attorney fees and requests that we assess additional attorney fees for services rendered at the trial level and in association with this appeal. In consideration of this issue, we reviewed the record and Rule 1.5 of the Rules of Professional Conduct.

According to Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981), factors used in determining attorney fees in workers’ compensation cases are (i) the degree of skill and ability exercised, (ii) the amount of the claim, and (iii) the amount of time devoted to the case. Considering the efforts of Mr. Lopez’s attorney, we find no error in the WCJ’s $7,500.00 award for attorney fees. It is clear from the record that Mr. Lopez’s attorney spent a considerable amount of time pursuing his client’s case and vigorously enforcing Mr. Lopez’s rights at the trial level. Moreover, counsel for Mr. Lopez’s efforts on appeal resulted in the imposition of additional penalties against the Town. Finally, we recognize that the workers’ compensation act is social legislation. To effectuate the purposes behind the workers’ compensation framework and to encourage attorneys to represent plaintiffs in workers’ compensation cases, attorney fees should be liberally granted.

|sIn Jones v. Universal Fabricators, 99-1370, pp. 10-11 (La.App. 3 Cir. 2/9/00), 758 So.2d 856, 862-63, writ denied, 00-742 (La.5/12/00), 762 So.2d 13, this court noted:

We emphasize that adequate [attorney] fees in workers’ compensation cases is the basis for an injured employee obtaining effective counsel. La.R.S. 23:1221, which authorizes [attorney] fees, encourages the retention of effective counsel by an employee who is injured, unemployed and unable to pay for capable representation.
It is evident that an employee in workers’ compensation cases by definition is placed in a disadvantageous position. The employee is injured, unemployed and often totally lacking in financial resources. In contrast, the employer has the financial means to obtain attorneys to prepare and argue its case. The primary purpose of workers’ compensation is to protect injured employees from impoverishment. If an employee is arbitrarily deprived of benefits, the attorney who litigates on his behalf and is successful at showing arbitrary and capricious conduct on the part of the employer, has aided not only his client but also the administration of the workers’ compensation system. This work is very important as it helps discourage others who might seek to further their own economic fortune at the expense of persons injured in their employ. Considering these goals of workers’ compensation, we find that an increase in [attorney] fees is warranted.

For the efforts by Mr. Lopez’s attorney, we affirm the WCJ’s award of $7,500.00 and award an additional $4,000.00 in attorney fees for his work on this appeal.

IV.

CONCLUSION

For the reasons articulated above, we amend and affirm the judgment of the WCJ. We increase the amount of penalties assessed against the Town for the improper termination of Mr. Lopez’s benefits to $8,000.00, and we award an | {¡additional $4,000.00 in attorney fees for Mr. Lopez’s counsel’s work on appeal. Costs of this appeal are assessed against Defendant Town of Zwolle.

AMENDED AND AFFIRMED.

AMY, J., concurs in the result.

      . We note that the issue regarding an increase in penalties under La.R.S. 23:1201(F) was not briefed. Thus the claimant has apparently abandoned any claim that he is due an increase in penalties under Paragraph (F).

      . Even if Mr. Lopez had stated "I’m now working" to the adjuster, the Town would have still been required to seek modification of the existing judgment before terminating Mr. Lopez’s benefits. See Broussard v. Lafayette Parish Sch. Bd., 06-268 (La.App. 3 Cir. 9/27/06), 939 So.2d 662, writ denied, 06-2591 (La. 1/12/07), 948 So.2d 152.