author: AMY, Judge.

text:
    Charles EBINGER, et ux. v. VENUS CONSTRUCTION CORPORATION, et al.
    Nos. 10-194.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Wayne M. Babovich, Babovich & Spe-dale, PLC, New Orleans, LA, for Defendant/Appellee, Roy Carubba.
    Thomas J. Eppling, Craig W. Brewer, Sara P. Scurlock, Staines, Eppling & Myers, Metairie, LA, for Defendant/Appel-lee, Post-Tension Slabs, Inc.
    Thomas H. Morrow, William Lee Melan-con, Melancon <& Associates, Lafayette, LA, for Plaintiffs/Appellees, Charles Ebinger Charlene Ebinger.
    W. Evan Plauche’, Justin E. Alsterberg, Shailendra Kulkarni, Hailey, McNamara, Hall, Larmann & Papale, LLP, Metairie, LA, for Defendant/Appellant, Venus Construction Corporation.
    Glen E. Mercer, Kourtney Twenhafel French, Salley, Hite, Rivera & Mercer, New Orleans, LA, for, Defendant/Appellee, Maryland Insurance Company.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

hThe plaintiffs filed suit against their home contractor alleging structural defects in the home’s construction. The contractor later filed a third party demand against a subcontractor and an engineer. The engineer was dismissed from the demand upon a granting of an exception of peremption pursuant to La.R.S. 9:5607. That determination was affirmed on appeal. The subcontractor also filed an exception of prescription which was granted by the trial court in light of the determinations as to the engineer. The contractor seeks review of the subcontractor’s dismissal, filing both an application for supervisory writ and an appeal. On consolidated review, we reverse and remand.

Factual and Procedural Background

The plaintiffs, Charles and Charlene Ebinger, engaged Venus Construction Corporation to construct their residence in 1995. In the 2003 petition instituting this matter, the plaintiffs alleged that the home contained major structural defects, including defects in the foundation system which resulted in, among other things, cracks in the sheet rock, tile, and brick floor. The plaintiffs sought recovery under the New Home Warranty Act, see La.R.S. 9:3141, et seq., and named Venus as a defendant.

In a 2006 Third Party Demand, Venus sought indemnification from Post-Tension Slabs, Inc., a foundation subcontractor, and from Roy Carubba, an engineer. Mr. Carubba filed an exception of peremption based on La.R.S. 9:5607. He observed that La.R.S. 9:5607, as enacted in 2003, contained a five-year peremptive period for suits brought under the New Home Warranty Act and argued that this period should be applied retroactively to dismiss Venus’s indemnification suit against him. The trial court granted the exception as the third party demand was not filed until ninejjyears after the home was completed. On appeal, a panel of this court affirmed the trial court’s ruling that, prior to the 2003 enactment of La.R.S. 9:5607, Venus’s claim for indemnification did not yet exist. See Ebinger v. Venus Constr. Corp., OS-379 (La.App. 3 Cir. 10/1/08), 995 So.2d 1224. The panel determined that Venus acquired an unvested, conditional right to indemnification at the time the Ebingers filed the initial suit. Id. However, it was three additional years until Venus filed a third party demand against Mr. Carubba and no judgment on the Ebingers’ suit had been rendered against Venus at that time. By then, Venus’s claim was perempted by the five-year peremptive period of La.R.S. 9:5607.

Thereafter, and at issue in this review, Post-Tension filed an exception of prescription, asserting that Venus’s claim for indemnification had perempted against it as it had against Mr. Carubba since both claims were for indemnification. The trial | o.court granted the exception and dismissed Venus’s claim against Post-Tension Slab. Venus seeks review of the ruling through application for supervisory writ and by appeal. These matters were consolidated for review.

Discussion

Venus contends that the trial court erred in determining that its right to indemnification vested at the time of the main 2003 demand. It argues, instead, that its right vested, at the latest at the time the home was occupied in April 1997. In support of this, it points to Post-Tension’s completion of its foundation work prior to the home’s occupancy. It also contends that Post-Tension fulfilled, or breached, its contract by that time period and, therefore, the applicable peremptive period is that in place at the time of the occupancy.

As Post-Tension is a contractor rather than an engineer, like Mr. Carubba in the first review of this matter in Ebinger, 995 So.2d 1224, La.R.S. 9:2772 provides the applicable peremptive period in this case. Venus and Post-Tension differ, however, on which version of the statute is applicable.

Post-Tension argues that the statute, as amended in 2008, is applicable and provides a five-year peremptive period. This version of the statute, which was followed by the trial court, provides:

§ 2772. Peremptive period for actions involving deficiencies in surveying, design, supervision, or construction of immovables or improvements thereon
A. No action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, |4consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of im-movables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9):
(l)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.
(b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner.
B. (1) The causes which are per-empted within the time described above include any action:
(b) For damage to property, movable or immovable, arising out of any such deficiency.
(3) This peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person.

Thus, Post-Tension contends that the peremptive period for Venus’s indemnification claim commenced in 1997 at the time the Certificate of Occupancy was issued. See La.R.S. 9:2772(A)(1). It further argues that, since Venus did not file its third party demand until 2006, its claim was perempted due to the expiration of more than five years. The trial court, citing Ebinger, 995 So.2d 1224, agreed with | r,Post-Tension and applied the 2003 version of La.R.S. 9:2772 in dismissing the matter.

Venus, however, contends that the 1997 version of La.R.S. 9:2772 is applicable as it set forth the peremptive period at the time the Certificate of Occupancy was issued, or alternatively, as the latest day its contract with Post-Tension could have been breached. In 1997, the statute included a ten-year peremptive period and provided:

A. No action, whether ex contractu, ex delicto, or otherwise, including, but not limited to, an action for failure to warn, to recover on a contract or to recover damages shall be brought against any person performing or furnishing land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner[.]
B. The causes which are perempted within the time described above include any action:
(1) For any deficiency .... in the construction of any improvement to immovable property;
This peremptive period shall extend to every demand whether brought by direct action or for contribution or indemnity or by third party practice, or whether brought by the owner or by any other person.

16Thus, the final clause of La.R.S. 9:2772(B) specifically indicates that the peremptive period is applicable to an indemnity claim. Moreover, Venus asserts that its right to seek indemnity against Post-Tension became a vested right at the time of occupancy.

Generally, Louisiana courts have determined that prescription on an indemnification claim “begins to run when the indemnity claimant suffers the loss or damage, at the time of the payment of the underlying claim, payment of a judgment thereon, or payment of a settlement thereof by the party seeking indemnity, i.e., when the judgment has been cast.” Reggio v. E.T.I., 07-1433, p. 9 (La.12/12/08), 15 So.3d 951, 957 (emphasis in the original). This was recognized by the panel in Ebinger, 995 So.2d at 1226, when it explained:

Prior to the enactment of the statute, Venus Construction had not yet been sued by the Ebingers; therefore, no right to indemnification for the Ebing-ers’ potential claims existed. Once the Ebingers’ suit was filed, Venus Construction acquired an unvested, conditional right to indemnification. Nevertheless, three years passed before Venus Construction filed its third party demand against Roy Carubba, and no judgment had yet been rendered against Venus Construction.

Accordingly, the Ebinger panel determined that Venus’s indemnity claim against Mr. Carubba had perempted as the period expired before the third party demand was filed or Venus was cast in judgment. Post-Tension seeks to apply that general principle to its contention that Venus’s indemnity claim has similarly perempted.

Yet, La.R.S. 9:5607, as applied in the first Ebinger review, and La.R.S. 9:2772 differ. La.R.S. 9:2772(B), at all times pertinent to this matter, has provided that “this peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person.” (Emphasis added.) This provision deliberately | commenced the peremp-tive period at the time of the 1997 Certificate of Occupancy and became a vested right of the indemnity claimant. Jurisprudence has recognized that La.R.S. 9:2772 is “an exception to the general rule that a claim for indemnification doesn’t begin to prescribe until the party is cast in judgment.” See Claiborne v. Rheem Mfg. Co., 579 So.2d 1199, 1200 (La.App. 5 Cir.)(citing Smith v. Ly, 498 So.2d 128 (La.App. 5 Cir.1986)), writ denied, 584 So.2d 1164 (1991).

For these reasons, Post-Tension’s reliance on Ebinger, 995 So.2d 1224, and Pa triot American Hospitality Partnership, LP v. Mississippi Land Holdings, Inc., 06-0601 (La.App. 4 Cir. 12/13/06), 948 So.2d 249, writ denied, 07-80 (La.3/9/07), 949 So.2d 450, is misplaced as both cases involved interpretations of La.R.S. 9:5607. See also Lafayette Parish Sch. Bd. v. Ratcliff Constr. Co., 09-762 (La.App. 3 Cir. 2/3/10), 30 So.3d 279, writ granted in part, denied in part, 10-0931 (La.9/17/10), 45 So.3d 1059 (wherein the Louisiana Supreme Court recently remanded the matter to the district court to allow the plaintiff to remove the grounds of the exception of peremption by amendment of the petition.).

Furthermore, this case falls outside of the general concept that a law modifying the duration of prescription will be inapplicable in cases where prescription has accrued, but may be applicable to those which are running. See Elevating Boats, Inc. v. St. Bernard Parish, 00-3518 (La.9/5/01), 795 So.2d 1153. This jurisprudence is inapplicable in cases in which a statute shortens a prescriptive period, as here. Id. at 1163, n. 12. Instead, the supreme court has remarked that “[p]rinci-ples of fairness and equity combined with constitutional considerations have led us to find that statutes shortening a prescriptive period may be impermissible absent a transitional period | ^sufficient to permit a claimant to seek judicial enforcement of a claim otherwise adversely affected by the new prescriptive period.” Id. (Emphasis in the original.)

For these reasons, we find error in the trial court’s retroactive application of La. R.S. 9:2772 in granting Post-Tension’s exception of prescription. We reverse that determination and remand for further proceedings.

DECREE

For the foregoing reasons, the trial court’s dismissal of the appellee, Post-Tension Slabs, Inc., pursuant to the granting of the exception of prescription is reversed. This matter is remanded for further proceedings. All costs of this proceeding are assessed against the appellee, Post-Tension Slabs, Inc.

REVERSED AND REMANDED.

      . Entitled "Actions against a professional engineer, surveyor, professional interior designer, architect, real estate developer; peremp-tive period[,]”, La.R.S. 9:5607 provides:
      A.No action for damages against any professional engineer, surveyor, engineer intern, surveyor intern, or licensee as defined in R.S. 37:682, or any professional architect, landscape architect, architect intern, or agent as defined in R.S. 37:141, or professional interior designer, or licensee as defined in R.S. 37:3171, or other similar licensee licensed under the laws of this state, or real estate developer relative to development plans which have been certified by a professional engineer or professional architect, whether based upon tort, or breach of contract, or otherwise arising out of an engagement to provide any manner of movable or immovable planning, •construction, design, or building, which may include but is not limited to consultation, planning, designs, drawings, specifications, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought unless filed in a court of competent jurisdiction and proper venue at the latest within five years from:

      (2) The date the owner has occupied or taken possession of the improvement, in whole or in part, if no such acceptance is recorded!.]

      B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
      C. The five-year period of limitation provided for in Subsection A of this Section is a peremptive period within the meaning of Civil Code Article 3458 and in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
      D. The provisions of this Section shall take precedence over and supersede the provisions of R.S. 9:2772 and Civil Code Article 2762 and 3545.

      . For disposition of the companion writ application, see Ebinger v. Venus Constr. Corp., CW09-1407 (La.App. 3 Cir. 10/6/10), 48 So.3d 380.


source: Caselaw Access Project

license: Public Domain

text:
    Charles EBINGER and Charlene Ebinger v. VENUS CONSTRUCTION CORPORATION.
    Nos. CW 09-1407.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.
    Wayne M. Babovich, Babovich & Spe-dale, PLC, New Orleans, LA, Christopher John Couch, Metairie, LA, for Defendant/Respondent, Roy Carubba.
    Thomas J. Eppling, Craig Wren Brewer, Sara P. Scurlock, Staines, Eppling & Myers, Metairie, LA, for Defendant/Respondent, Post>-Tension Slabs, Inc.
    William Lee Melancon, Thomas H. Morrow, Melancon & Associates, Lafayette, LA, for Plaintiffs/Respondents, Charles Ebinger Charlene Ebinger.

      Leigh Haynie, Carenero, LA, for Plaintiff/Respondent, Charles Ebinger.
    Glen E. Mercer, Kourtney Twenhafel French, Salley, Hite, Rivera & Mercer, New Orleans, LA, for Defendant Respondent, Maryland Insurance Company.
    W. Evan Plauche’, Justin E. Alsterberg, Shailendra Kulkarni, Hailey, McNamara, Hall, Larmann & Papale, LLP, New Orleans, LA, for Defendant/Applicant, Venus Construction Corporation.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

For the reasons cited in the companion appeal of Ebinger v. Venus Constr. Corp., 10-194 (La.App. 3 Cir.10/6/10), 48 So.3d 375, the trial court’s dismissal of the appel-lee-Post-Tension Slabs, Inc. pursuant to the granting of the exception of prescription is reversed. This matter is remanded for further proceedings. All costs of this proceeding are assessed against the appel-lee, Post-Tension Slabs, Inc.

WRIT GRANTED. REVERSED AND REMANDED.


author: SAUNDERS, Judge.

text:
    Richard C. BENTLEY v. Bobby FANGUY.
    Nos. 09-822, 09-1509.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.
    Rehearing Denied Nov. 24, 2010.

      Stephen Gary McGoffin, Shawn A. Carter, Ryan M. Goudelocke, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendant Appellee, Bobby Fanguy.
    Ed W. Bankston, Attorney at Law, Lafayette, LA, for Plaintiff Appellant, Richard C. Bentley.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

_JjThis is a case of a dispute between neighbors. The plaintiff filed a petition for injunction and damages related to an assertion that his neighbor was illegally disposing waste from his home onto the plaintiffs property, namely the ditch that runs across the plaintiffs front yard. The defendant responded with several reconven-tional demands, including a request for permanent injunction enjoining the plaintiff from certain activities, a claim that the plaintiff had damaged his Russian Olive Hedges, and a claim for general damages.

The trial court denied the plaintiffs request for injunction and damages. The trial court also sanctioned the plaintiff in the amount of $187,041.75 for the attorney’s fees expended by the defendant. Further, the trial court awarded the defendant an injunction to prevent certain activities by the plaintiff and $5,000.00 for damage to the hedge. Finally, the trial court denied the defendant any general damages and reimbursement of costs associated with the subsequent sale of the defendant’s home. All costs of the proceedings at the trial level were assessed to the plaintiff.

Both the plaintiff and the defendant raised issues with the trial court’s judgment. We reverse the trial court’s sanctions against the plaintiff and affirm the remainder of the judgment.

FACTS AND PROCEDURAL HISTORY:

Richard Bentley (Bentley) and Robert Fanguy (Fanguy) were neighbors in the Country Estates Subdivision located in St. Martin Parish, Louisiana. According to Bentley’s wife, she detected a substance in the ditch in front of their home that she surmised was potentially hazardous, and that its source was from the Fanguy residence. Bentley then took samples from the ditch and had tests conducted on those samples. The results of one of those tests showed a fecal coliform level as “too 12numerous to count.” Bentley brought the test result to Fanguy’s attention, but without success.

On or about June 24, 2005, Bentley filed a lawsuit against Fanguy, alleging that Fanguy’s waste management system discharged an effluent with elevated levels of fecal coliform that created a nuisance and public health hazard directly onto Bentley’s property in violation of Louisiana health standards. Bentley’s suit requested an injunction and damages for the unhealthy condition, emotional distress, inconvenience, and his loss of enjoyment of life. Fanguy answered the suit in the form of a general denial alleging that his waste management system conformed to all applicable health regulations and reconvened against Bentley, seeking injunction and damages.

A trial on the merits was conducted over several days. The trial court found that Bentley failed to carry his burden to prove that Fanguy had discharged an unhealthy effluent onto Bentley’s property. Further, the trial court enjoined Bentley from entering Fanguy’s property, obstructing the flow of Fanguy’s drainage ditch or culvert, directing surveillance cameras at the Fan-guy home, failing to maintain the grass in his own ditch below twelve inches, interfering with the peaceful enjoyment of the Fanguy home in any fashion, filing any lawsuit against Fanguy, his family, agents, employees, attorneys, or other consultants in any venue or docket number other than Division G of the 16th Judicial District Court, and prohibiting pruning, cultivation, or in any way damaging Fanguy’s Russian Olive Hedge. The trial court also awarded $5,000.00 to Fanguy for damage it concluded that Bentley was responsible for to the hedge and sanctioned Bentley for $137,041.75, as attorney’s fees to be paid to Fanguy. Finally, the trial court assessed Bentley $17,446.76 for |3costs of the proceedings. Bentley and Fanguy both took issue with the trial court’s judgment, and raised the following assignments of error:

BENTLEY’S ASSIGNMENTS OF ERROR:

1. The trial court erred by its sanction of Bentley for attorney’s fees in the amount of $137,041.75.
2. The trial court erred by its judgment of damage to the Fanguy’s Russian Olive Hedge in the amount of $5,000.00.
3. The trial court erred by its assignment of costs to Bentley in the amount of $17,446.76.
4. The trial court erred by failure to enjoin Fanguy from discharging untreated sewage onto Bentley’s property, and by failing to award damages to Bentley.

FANGUY’S ASSIGNMENTS OF ERROR:

1. The trial court erred in failing to award Fanguy general damages for Bentley’s conduct.
2. The trial court erred in failing to reimburse Fanguy for costs associated with selling his home.

BENTLEY’S ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, Bentley contends that the trial court erred by sanctioning him in the amount of $137,041.75, the amount of attorney’s fees incurred by Fanguy. We find that Bentley’s assignment has merit.

The trial court below assessed sanctions against Bentley under La.Code Civ.P. art. 863. Louisiana Code of Civil Procedure Article 863 states:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is 14 warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
F. A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.

The standard of reviewing such as assessment of sanctions is that of abuse of discretion. Collins v. Ferrellgas, Inc., 96-810 (La.App. 3 Cir. 2/5/97), 689 So.2d 569. Sanctions under Article 863 are precluded when there exists justification in the slightest for a party to exercise its legal right. Dauzat v. Trinity Universal Ins. Co. of Kansas, 95-1235 (La.App. 3 Cir. 3/6/96), 670 So.2d 785 (emphasis added).

Our Fourth Circuit, in Fairchild v. Fairchild, 580 So.2d 513, 517 (La.App. 4 Cir.1991) (emphasis added) stated the following:

Article 863 is intended only for exceptional circumstances and is not to be used simply because parties disagree as to the correct resolution of a legal matter. See, Gaiardo v. Ethyl Corporation, 835 F.2d 479 (3rd Cir.1987), citing Morristown Daily Record, Inc. v. Graphic Communications Union Local 8N, 832 F.2d 31 (3rd Cir.1987). Furthermore, [nothing] in the language of Rule 11 or Article 863 empowers the district court to impose sanctions on lawyers [or litigants] simply because a particular argument or ground for relief is 1 ^subsequently found to be unjustified. Gaiardo, supra, citing Golden Eagle Distributing Corporation v. Burroughs Corporation, 801 F.2d 1531 (9th Cir.1986). Failure to prevail does not trigger a sanction award. Gaiardo, supra.
In determining a violation of Rule 11 or Article 863 the trial court should “avoid using the wisdom of hindsight and should test the signer’s [or litigants] conduct by inquiring what was reasonable to believe at the time the pleading, motion or other paper was submitted.” Gaiardo, supra at 484.

In the case before us, Bentley filed a petition for injunctive relief and damages against Fanguy on June 24, 2005. As such, we must look to determine what was reasonable for him to believe at that time. Prior to filing suit, Bentley had in his possession a report from Sherry Laboratories dated May 17, 2005, indicating that a sample provided to it on May 10, 2005, contained a level of fecal coliform that was greater than 600,000 (“too numerous to count”) Colony Forming Units (CFU) per 100 milliliters. The significance of the result of that test in relation to Bentley’s reasonable belief when he filed suit is revealed in Bentley’s testimony at trial, which included the following:

Q Is raw sewage the same thing as fecal coliform?
A Is it — Is fecal coliform makes up the vast majority of feces, yes. That’s where the name feces comes from.
Q That wasn’t my question. My question is, is raw sewage and fecal coli-form the same thing?
A Yes.
Q Okay.
A To my understanding, yes.
Q All right.
A But I’m not an expert on the matter.
|„Q Okay. The State of Louisiana has not established any comparable limits, has it, for residential treatment systems?
A My understanding is that they accept that four hundred [CFU per 100 milliliters] fecal eoliform is the limit, because it’s the National Science Foundation, or — I forget what that document that we have, has established that as the limit, as the acceptable limit for health standards.

In delving further into the record, we find more support for Bentley reasonably believing the contents of his petition against Fanguy in the form of his wife’s testimony. Carol DiPietro, Bentley’s wife, is a certified medical technologist by the American Society of Clinical Pathologists. Although not recognized by the trial court as an expert in this particular case, the trial court stated that had she done the actual testing of the samples from Bentley’s ditch, it would recognize her as such. The following is an excerpt from her testimony:

Q Okay. Now, let’s get to the ditch situation. When did you first notice the problem with the ditch?
A Well, it was — it was on or about February 2005. I had noticed foul smells coming from the ditch that was next to the mailbox at the beginning of my driveway and the culvert, it was coming from Mr. Fan-guy’s house, so that the ditch was right next to the culvert. And the— What I observed was large amounts of suspended fecal material and this black sludgy stuff that went from the ditch next to the mailbox at the beginning of the driveway, underneath the driveway, and about one— one third of the way down the ditch in front of my home.
Q Okay. And what did you do — What did you do then?
A Well, I was concerned because, to me, — I mean, it was foul smelling, there was obvious fecal material there. You didn’t have to do any testing to see that the system must have been septic, so I brought it to the attention of my husband and asked him to talk to Mr. Fanguy about it.

Mrs. DiPietro’s testimony above indicates that Bentley’s wife, prior to his filing suit, informed him that, in her opinion, there was fecal matter in the ditch in 17front of their home, and that it was coming from Fangujas residence. It is certainly reasonable for Bentley to give credence to his wife’s opinion, especially given that she works in the area of identifying public health risks.

Bentley further testified that he had spoken to Fanguy in an attempt to settle their differences prior to his filing suit. Finally, Bentley’s attorney at the time the suit was filed, Kenneth Miller, testified to the following:

Q Did you file the original petition for damage [and] injunction in the lawsuit?
A I did.
Q And can you furnish the Court and testify as to the basis on which you filed that lawsuit?
A Yes. Your Honor, when this lawsuit was filed, I had in my possession a document that was a report from Sherry Labs that showed the fecal content of the effluent, or at least water in the ditch in front of Mr. Bentley’s home at numbers exceeding — well, too numerous to count. That’s what we had. That was obtained through an environmental company that Mr. Bentley had hired, and that was Page and Kraemer, If I’m not mistaken. The people at Page and Kraemer informed me through their employee, Mr. Dan Hubbard, I believe, that fecal coliform at that count was dangerous to human beings. And after having sent notice of that to the neighbor, I believe, on behalf of Mr. Bentley requesting some assistance in getting that situation resolved and hearing nothing, the lawsuit was filed.

The testimony highlighted above coupled with the test results of a sample taken and tested prior to the time that Bentley filed his original suit against Fan-guy, provide a reasonable basis for Bentley to believe that potentially harmful substances were originating from Fanguy’s residence and those substances posed a risk to his family’s health

Fanguy points out that Bentley was informed by two state agencies that his waste disposal system met all the necessary requirements prior to Bentley filing suit. | s However, it is clear from the testimony of representatives of those respective agencies that no actual testing was done on the output of Fanguy’s system, and that those agencies simply informed Bentley that Fanguy’s system was an approved system.

Further, in the trial court’s reasons for judgment regarding the imposition of sanctions, it noted that there were more economic remedies that Bentley could have pursued rather than file the original suit. While it appears the trial court was correct, this is not a relevant factor in determining whether La.Code Civ.P. art. 863 sanctions are imposed. Nor is the fact that Bentley has filed suits against Fanguy subsequent to the suit at issue. The purpose of those suits and potential La.Code Civ.P. art. 863 sanctions are appropriately dealt with in those other proceedings.

Accordingly, we find that the trial court abused its discretion in sanctioning Bentley $137,041.75. Therefore, we reverse that portion of the trial court’s judgment.

BENTLEY’S ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Bentley contends that the trial court erred by awarding Fanguy $5,000.00 for damage to Fanguy’s Russian Olive Hedge. This contention lacks merit.

A finding that Bentley damaged Fanguy’s Russian Olive Hedge is a finding of fact and subject to the well settled manifest error standard of review. “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. at 1112.

In the case before us, Fanguy presented expert opinions regarding whether a | ^herbicide or other foreign substance had been applied to his Russian Olive Hedge and whether the pruning that Bentley had done to Fanguy’s hedge had caused damage to it. Jason P. Ducote, an employee with the Louisiana Department of Agriculture, opined that “it appeared that a herbicide application had been directly applied to one side of the olive shrubs.” Jim Foret, an arborist, testified that the severe pruning done to the Russian Olive Hedge could have caused root death. Further, he testified to the following:

Q All right. Did you notice any other type of damage to the plant?
A In that area, no. There was another area of a hedge that it appeared that something had [ ] burned the foliage.
Q All right. It would not be damage that would be a product simply of pruning?
A It was not pruning damage, that I could see.

The expert testimony presented by Fanguy provides a reasonable basis in finding that Bentley damaged Fanguy’s Russian Olive Hedge whether that damage be by pruning or spraying a substance on it. Bentley cites La.Civ.Code art. 688 in defense of his admitted action of having the Russian Olive Hedge pruned. Louisiana Civil Code Article 688 states:

A landowner has the right to demand that the branches or roots of a neighbor’s trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor.
A landowner does not have this right if the roots or branches do not interfere with the enjoyment of his property.

This court, in the case of Fontenot v. Central Louisiana Electric Co., 147 So.2d 773 (La.App. 3 Cir.1962), found that while an adjoining landowner can have a neighbor cut overhanging branches back to the property line at the neighbor’s 11flexpense, the adjoining landowner cannot cut the branches himself without permission of the neighbor. Therefore, we find Bentley’s defense is without merit.

Next, Bentley argues that the trial court’s award of $5,000.00 was baseless. We disagree.

A trial judge is afforded much discretion in the assessment of damages, and the adequacy of the award is determined by the circumstances of that case. Olsen v. Johnson, 99-783 (La.App. 3 Cir. 11/3/99), 746 So.2d 740. We do not find that the trial court’s award was without substantiation. Fanguy testified that the hedge had the purpose of providing privacy to both he and his family, and that, after Bentley had the hedge pruned, it was inadequate for this purpose. Further, photographic evidence of the hedge after Bentley improperly pruned it showed substantial damage. The pruning was done over a span of over one hundred feet. Accordingly, we affirm the trial court’s judgment in this regard.

BENTLEY’S ASSIGNMENT OF ERROR NUMBER THREE:

Bentley asserts in his third assignment of error that the trial court erred in its assignment of costs to him in the amount of $17,446.76. We find this assertion is without merit.

Louisiana Code of Civil Procedure Article 1920 states:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

The trial court, in taxing court costs, is given great discretion and may assess those costs in any manner it deems equitable. La.Code Civ.P. art. 1920. The standard of reviewing assessment of court costs is abuse of discretion. Trahan v. Asphalt Associates, Inc., 01-311 (La.App. 3 Cir. 10/17/01), 800 So.2d 18.

In the case before us, the trial court assessed all costs of the proceedings to Bentley. Bentley lost his original suit for damages and injunction. Fanguy, while not prevailing on each of his several recon-ventional demands, obtained a permanent injunction against Bentley that barred Bentley from entering Fanguy’s property, obstructing the flow of Fanguy’s drainage ditch or culvert, directing surveillance cameras at the Fanguy home, failing to maintain the grass in his own ditch below twelve inches, interfering with the peaceful enjoyment of the Fanguy home in any fashion, filing any lawsuit against Fanguy, his family, agents, employees, attorneys, or other consultants in any venue or docket number other than Division G of the 16th Judicial District Court, and prohibiting pruning, cultivation, or in any way damaging Fanguy’s Russian Olive Hedge. Finally, the trial court awarded $5,000.00 to Fanguy for damage it concluded that Bentley did to the hedge. Given that Fan-guy obtained several aspects of the relief that he sought and the vast discretion of the trial court in assessing costs, we clearly find no abuse of discretion by the trial court in assessing all costs of the trial proceedings to Bentley.

BENTLEY’S ASSIGNMENT OF ERROR NUMBER FOUR:

In his final assignment of error Bentley argues that the trial court erred by failure to enjoin Fanguy from discharging untreated sewage onto Bentley’s property, and by failing to award damages to Bentley. We find this assignment of error as related to the requested injunction is moot, and as related to the requested damages is completely without merit.

The issuance of a permanent injunction is governed by La.Code Civ.P. art. 3601, which states, in pertinent part, “[a]n injunction shall be issued in cases where | ^irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.” The burden of proof necessary to have a permanent injunction is that of preponderance of the evidence. Picard v. Choplin, 306 So.2d 918 (La.App. 3 Cir.1975).

The applicable standard of review when dealing with the issuance of a permanent injunction is that of manifest error. Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22. However, we need not review this issue as there is evidence in the record that Fan-guy has relocated from the home located next to Bentley. Thus, Bentley’s argument dealing with the injunction he requested is moot.

Bentley also argues that the trial court erred in denying him damages. Bentley’s cause of action for damages was based upon La.Civ.Code art. 667, which states, in pertinent part, that “[ajlthough a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

The trial court found that Bentley failed to prove that Fanguy’s system discharged unhealthy effluent, and that the discharge from Fanguy’s system presented an unreasonable health risk to Bentley or his family. This finding by the trial court is a finding of fact and subject to the manifest error standard of review. Sistler, 558 So.2d 1106.

In the case before us, representatives from both the Louisiana Department of Health and Hospitals and the Louisiana Department of Environmental Quality testified that Fanguy’s system did not violate any of their respective rules. Testing done on the output of Fanguy’s system showed a very large variation in levels of fecal liacoliform, some of which did not violate any standards cited by Bentley. Moreover, there was testimony that fecal coliform is merely an indicator substance rather than a harmful one. Finally, there is testimony in the record that the source of fecal coliform in the samples taken to test could have originated from sources other than Fanguy’s system. Therefore, we find that there is a reasonable basis in the record for the trial court finding that Bentley failed to carry his burden of proof. Thus, this assignment of error is without merit.

FANGUY’S ASSIGNMENT OF ERROR NUMBER ONE:

Fanguy, in brief, asserts that the trial court erred in failing to award him general damages for Bentley’s conduct. We disagree.

Fanguy cites the protective covenants for Country Estates as a basis for the trial court to assess Bentley with general damages. However, this type of claim is one contemplated by La.Civ.Code art. 2815. The choice by the trial court to not award damages to Fanguy is a finding of fact and subject to the manifest error standard of review. Sistler, 558 So.2d 1106.

Fanguy claims that he. and his wife suffered mental anguish, anxiety, inconvenience and harassment due to Bentley’s conduct. Both Bentley and his wife testified that they never did anything of the nature to injure or harm the Fanguys either physically or mentally, while the Fanguys testified to the opposite. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. at 1112. Accordingly, we find no merit to Fanguy’s assertion, and affirm the trial court’s denial of general damages to him.

|UFANGUY’S ASSIGNMENT OF ERROR NUMBER TWO:

Next, Fanguy contends that Bentley should reimburse him for the costs associated with Fanguy selling him home. Again, we find no credence in this contention.

Fanguy sold his home over a year and a half after any of the complained of activity by Bentley occurred and ceased. The trial court correctly found that any costs associated with Fanguy subsequently selling his home were not relevant to Fanguy’s damage claims against Bentley. Thus, we deny this request for reimbursement.

CONCLUSION:

Bentley raised four assignments of error: that the trial court erred by its sanction of Bentley for attorney’s fees, that the trial court in awarding Fanguy $5,000.00 for damage to his Russian Olive Hedge, that the trial court erred by assessing all costs incurred at the trial level to Bentley, and that the trial court erred in denying Bentley’s request for injunction and damages. Further, Fanguy asserted that the trial court erred in failing to award him general damages and reimbursement for the fees associated with subsequently selling his home.

We reversed the trial court’s sanctions against Bentley. We affirmed the trial court’s judgment in all other aspects. Costs of this appeal are split equally between Bentley and Fanguy.

REVERSED IN PART, AFFIRMED IN PART.


author: DECUIR, Judge.

text:
    Josie Stokes WEATHERLY v. FONSECA & ASSOCIATES, LLC, et al.
    No. 10-238.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Stan Gauthier, II, Nichole Laborde Romero, Attorneys at Law, Lafayette, LA, for Plaintiff/Appellant, Josie Stokes Weatherly.
    Nancy A. Rieheaux, Sharon B. Kyle, A.P.L.C., Baton Rouge, LA, for Defendant/Appellee, Manuel Builders, L.L.C.
    Sera Hearn Russell, III, Attorney at Law, Lafayette, LA, for Defendant/Appel-lee, Manuel Builders, L.L.C.
    Wayne Allen Shullaw, Attorney at Law, Lafayette, LA, for Defendant/Appellee, Montagnet & Domingue.
    James H. Gibson, David J. Ayo, Allen & Gooch, Lafayette, LA, for Defendants/Ap-pellees, Fonseca & Associates, L.L.C., R.J. Fonseca, Jr., Standard Title, L.L.C., Mitchell R. Landry, Continental Casualty Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   DECUIR, Judge.

hln this legal malpractice suit, the plain-tifi/appellant challenges the trial court’s grant of summary judgment in favor of her title attorneys.

FACTS

Josie Stokes Weatherly (Weatherly) contracted with Manuel Builders, LLC (Manuel) for the construction of a home on her land. She paid the law firm of Fonseca & Associates, L.L.C. (Fonseca) to handle a loan closing with Bank of Abbeville and Trust Company. The loan closed on May 29, 2007. Fonseca did not provide a copy of the title opinion to Weatherly at that time.

In August 2007, Manuel notified Weath-erly that there was a pipeline running across the property and that Gulf South Pipeline, LP had a servitude. At that time, it was determined that the residence encroached on the pipeline servitude. Weatherly halted construction.

On October 11, 2007, and November 2, 2007, Weatherly, through counsel, sent letters to Fonseca concerning the matter. On November 7, 2007, Fonseca replied, informing Weatherly of its negotiations to obtain a waiver from the pipeline company allowing construction to continue. Nevertheless, Weatherly did not allow construction to continue. Instead, on June 19, 2008, she filed suit in St. Martin Parish alleging malpractice against Fonseca and negligence on the part of Manuel. Fonse-ca filed exceptions of improper venue and improper cumulation of actions.

On September 17, 2008, a hearing was held on the exceptions. The trial court granted the exception of improper venue and ordered the matter transferred to Lafayette Parish. Judgment to that effect was submitted on October 27, 2008, and signed on November 14, 2008. The suit was filed in Lafayette Parish on December 1, 2008.

[2On September 4, 2009, Fonseca filed a motion for summary judgment in Lafayette Parish District Court alleging that Weatherly’s malpractice claim was per-empted under La.R.S. 9:5605. Weatherly filed an opposition asserting that peremption did not begin to run until January 2008 when her attorney received a copy of the title opinion. On November 4, 2009, the Lafayette Parish District Court granted Fonseca’s motion for summary judgment.

Weatherly lodged this appeal.

DISCUSSION

Weatherly’s sole contention on appeal is that the trial court erred in finding that her malpractice claim was perempted and in granting Fonseca’s motion for summary judgment.

Appellate courts review summary judgments de novo under the same criteria that governed the trial court’s consideration of whether or not summary judgment was appropriate. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La.3/13/98), 712 So.2d 882. After which, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Id. Thus, summary | judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. Id.

Louisiana Revised Statutes 9:5605 provides that a malpractice claim must be “filed in a court of competent jurisdiction and proper venue within one year” of the act or its discovery.

In this case, the Lafayette Parish District Court used Weatherly’s October 11, 2007 letter to Fonseca to mark the beginning of the peremptive period. Weatherly contends that the St. Martin Parish District Court actually transferred the case at the September 2008 hearing on Fonseca’s exception of improper venue, even though judgment to that effect was not signed until November 2008. Accordingly, she argues that the one year peremption period provided by La.R.S. 9:5605 did not expire. Fonseca argues that the matter is perempted because it was not filed in the proper venue until December 1, 2008.

The parties agree that this court addressed this issue in Burns v. Goudeau, 04-821 (La.App. 3 Cir. 11/10/04), 888 So.2d 1031. In that case, the court found that peremption had run. Weatherly asks that we reconsider the issue because the court did not address La.Code Civ.P. art. 121 which provides authority for transferring cases to a proper venue in the interest of justice. Weatherly contends the court’s finding in Bums renders La.Code Civ.P. art. 121 meaningless. To the contrary, La.Code Civ.P. art. 121 works just as intended when prescription is involved. It is not of use when the issue is peremption. Accordingly, we decline to reconsider Bums as this argument has no merit. Likewise, we are unpersuaded by Weath-erly’s argument that service of process for the St. Martin Parish filing is relevant to the |4expiration of the peremptive period. See M & L Indus., L.L.C. v. Hailey, 05-940 (La.App. 3 Cir. 3/1/06), 923 So.2d 869.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Josie Stokes Weatherly.

AFFIRMED.


text:
    Josie Stokes WEATHERLY v. FONSECA & ASSOCIATES, L.L.C., et al.
    No. 10-495.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.
    Stan Gauthier, II, Nichole Laborde Romero, Attorneys at Law, Lafayette, LA, for Plaintiff/Appellant, Josie Stokes Weatherly.
    Nancy A. Richeaux, Sharon B. Kyle, A.P.L.C., Baton Rouge, LA, Sera Hearn Russell, III, Attorney at Law, Lafayette, LA, for Defendant/Appellee, Manuel Builders, L.L.C.
    Wayne Allen Shullaw, Attorney at Law, Lafayette, LA, for Defendant/Appellee, Montagnet & Domingue.
    David J. Ayo, Allen & Gooch, Lafayette, LA, for Defendants/Appellees, Continental Casualty Company, Fonseca & Associates, L.L.C., R.J. Fonseca, Jr., Standard Title, L.L.C. and Mitchell R. Landry.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   DECUIR, Judge.

| ¶ This is a homeowner’s appeal of the trial court’s grant of summary judgment in favor of the builder.

FACTS

Josie Stokes Weatherly (Weatherly) contracted with Manuel Builders, LLC (Manuel) for the construction of a home on her land. Under the contract, Weatherly was to provide a survey of the property and assumed responsibility for any concealed condition. Despite having actual knowledge of the existence of a gas pipeline on her property, Weatherly provided a survey that did not show the pipeline servitude nor did she disclose its existence.

Construction commenced on the site at the same location where Weatherly’s mobile home had previously been located. When construction was approximately eighty percent complete, Manuel’s septic tank installation subcontractor called the Louisiana One Call Center which came to the site and located the gas pipeline. At that time, it was determined that the residence encroached on the pipeline servitude. Weatherly halted construction. Weatherly was later presented with a waiver from the pipeline company allowing construction to continue. Nevertheless, Weatherly did not allow construction to continue. Instead, she filed this lawsuit alleging negligence on the part of Manuel in failing to call Louisiana One Call before commencing construction.

Manuel filed a motion for summary judgment which was granted by the trial court. This appeal followed.

DISCUSSION

Weatherly contends that the trial court erred in granting summary judgment.

12Appellate courts review summary judgments de novo under the same criteria that governed the trial court’s consideration of whether or not summary judgment was appropriate. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La.3/13/98), 712 So.2d 882. After which, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Id. Thus, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. Id.

In this case, Weatherly argues that by failing to call the Louisiana One Call Center Manuel breached a duty owed to her under the Louisiana Underground Utilities and Facilities Damage Prevention Law, La.R.S. 40:1749.11 et. seq. to determine the location of the pipeline servitude. We disagree.

The Louisiana Underground Utilities and Facilities Damage Prevention Law on its face designates that the public policy goal is to protect the public from damage resulting from the underground utilities being damaged. Weatherly seeks to extend that purpose to protect her from locating her home on a gas pipeline servitude. We |sfind that the Louisiana Underground Utilities and Facilities Damage Prevention Law is not intended nor is it adequate to protect a homeowner from locating a residence within a gas pipeline servitude. Accordingly, if Manuel breached a duty by failing to call the Louisiana One Call Center, that duty did not encompass the risk that Weatherly would construct her home on a gas pipeline servitude. This is particularly true in this case where Weatherly had actual knowledge of the existence of the pipeline and contractual responsibility for the disclosure of concealed dangers and the site survey.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Josie Stokes Weatherly.

AFFIRMED.


author: DAVID E. CHATELAIN, Judge.

text:
    Nicol E. HANNIE v. Ray Allen GUIDRY, et al.
    No. 10-216.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      J. Clemille Simon, Barry L. Domingue, Simon Law Offices, Lafayette, Louisiana, for Plaintiff/Appellee, Nicol E. Hannie.
    James E. Diaz, Jr., John E. Ortego & Associates, Lafayette, Louisiana, for Defendants/Appellants, State Farm Mutual Automobile Insurance Co., Ray Allen Gui-dry.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and DAVID E. CHATELAIN, Judges.
   DAVID E. CHATELAIN, Judge.

I,The defendant driver and his insurer appeal the trial court’s determination that the driver was 100% at fault for a center turn lane collision between his vehicle and the plaintiffs. Finding no manifest error in the trial court’s findings of fact, we affirm its assessment of fault and its general damage award. We also deny the plaintiffs damages and attorney fees request for a frivolous appeal.

FACTS

On November 28, 2003, vehicles driven by Nicol Hannie and Ray Guidry collided in the center turn lane on Kaliste Saloom Road in Lafayette as Mr. Hannie attempted to exit a shopping center parking lot situated at the corner of Kaliste Saloom Road and Ambassador Caffery Parkway. Mr. Hannie filed suit for damages against Mr. Guidry and his insurer, State Farm Mutual Automobile Insurance Company.

A trial on the merits was held on November 25, 2009. The parties stipulated that Mr. Hannie’s vehicle sustained property damage totaling $19,202.99 and that Mr. Hannie incurred a rental expense of $5,039.05 and medical expenses totaling $1,155.50.

Evidence presented at trial established that the collision occurred on the day after Thanksgiving and that traffic was heavy at the time. Mr. Hannie was exiting the shopping center, intending to turn left onto Kaliste Saloom Road. At that point, Kaliste Saloom Road consists of five lanes, two lanes headed in opposite directions on either side of a designated center turn lane. Accordingly, Mr. Hannie had to cross two lanes of traffic and the center turn lane to complete his turn.

1 ?Mr. Hannie testified that traffic was stopped in the two traffic lanes he had to cross and was backed up as far as he could see to his left and right. He further testified that motorists in those two lanes provided him an opening to allow him to proceed with his turn, then waved him through the opening. Mr. Hannie related that he proceeded slowly across the two lanes and came to a stop before entering the turn lane. He described the opening in the traffic the motorists created as approximately fifteen or twenty feet. According to Mr. Hannie, he looked to the left and right before entering the turn lane, and, seeing no traffic approaching him, he proceeded forward; the impact took place “instantaneously” as he entered the turn lane. Mr. Hannie testified that he never saw Mr. Guidry’s vehicle approaching him.

Todd Landry was in the vehicle immediately behind Mr. Hannie waiting to turn left as Mr. Hannie attempted to exit the parking lot. Mr. Landry testified that the two travel lanes of Kaliste Saloom Road heading toward Ambassador Caffery Parkway were occupied with vehicles as far left and right as he could see. He described the traffic as moving “at a snail’s pace.”

According to Mr. Landry, Mr. Hannie was at a complete stop at the shopping center exit when two vehicles on Kaliste Saloom Road stopped to allow him to exit. He described Mr. Hannie’s maneuver as a “careful process of trying to go through ... those vehicles to stop and observe if it’s clear.” Mr. Landry explained that Mr. Hannie carefully crossed the first lane of travel, then the second lane of travel, stopping and going. As Mr. Hannie was proceeding into the center turn lane, Mr. Landry saw a dark-colored truck exit the travel lane closest to the turn lane “in an erratic” manner, then accelerate quickly and proceed at “a rapid rate of speed,” which he thought was “way too fast for the turning lane”; he estimated Mr. Guidry’s Isspeed at forty miles per hour. Mr. Landry continued, relating that the turn lane was clear as Mr. Hannie proceeded into it, then “before you could honk the horn or anything there was a big collision” between Mr. Guidry’s truck and Mr. Han-nie’s car. He further testified that before Mr. Guidry entered the turn lane, he (Mr. Guidry) was six or seven vehicles behind the vehicle in the travel lane closest to the turn lane that stopped to allow Mr. Han-nie and him to exit the parking lot. Mr. Landry did not see any other vehicles in the turn lane before the accident. Mr. Landry opined that there was nothing Mr. Hannie could have done to avoid the collision.

Mr. Landry next testified that immediately after the collision he exited his vehicle to check on the people involved in the accident and was surprised that rather than asking Mr. Hannie if he was okay, both the driver and the passenger of the truck that collided with Mr. Hannie approached Mr. Hannie “accusing him of pulling out in front of them.” Mr. Landry further testified that immediately after the collision, the driver and the passenger stated they were “turning up the road” with no explanation or description of where they were going. Mr. Landry related that at first he overheard Mr. Hannie ask Mr. Guidry why he was traveling in the turn lane if he was going to turn up the road. Later, after he had given his statement to the police, Mr. Landry overheard Mr. Guidry and his passenger state they were going to Sonic, the first establishment they would have encountered in the turn lane from where they were in traffic. Mr. Landry believed Mr. Guidry changed his destination to give him “justification for being in that turning lane.”

Mr. Guidry testified that cars obstructed his view of Mr. Hannie’s vehicle. He estimated that Sonic was approximately the distance of three car lengths from where he entered the turn lane and that he traveled at a speed of approximately thirty-five |4miles per hour in the turn lane. He denied that he was traveling too fast for the traffic conditions, stating, “I was driving at a normal speed[,] and I observed the traffic to ensure that I wasn’t going to hit anybody.”

On cross-examination, Mr. Guidry agreed that Mr. Hannie cautiously began his turn and inched forward slowly. He also agreed that he could have stayed in the inside travel lane until he got closer to Sonic before entering the turn lane, as there was no place to turn left before Sonic, and Sonic was 697 feet from where he entered the turn lane, not the three to four car lengths he initially stated. Mr. Guidry testified that he first saw Mr. Han-nie’s vehicle when it was about three car lengths in front of his truck but denied having an opportunity to avoid the collision, testifying that he hit his brakes in an attempt to do so. Mr. Guidry further testified that the vehicles that stopped to let Mr. Hannie exit were large, similar to a Suburban, and prevented him from seeing Mr. Hannie’s vehicle as it moved toward the turn lane. He also denied seeing the opening through which Mr. Hannie was proceeding.

Mr. Guidry’s passenger, Peggy Prossen, is a resident of Florida; her testimony was presented via video deposition. Ms. Pros-sen testified that Mr. Guidry’s truck was “high enough where I could see out and see a distance” and that she first saw Mr. Hannie moving across the first lane of traffic, then saw him move a second time. She recalled Mr. Guidry being maybe three or four car lengths behind the vehicles that stopped to let Mr. Hannie exit. She stated that however far back they were nothing interfered with her ability to see Mr. Hannie’s car and that “probably nothing” prohibited Mr. Guidry from seeing it either. Ms. Prossen described the opening through which Mr. Hannie was proceeding as fifteen to twenty feet wide. She testified that she thought Mr. Hannie made eye contact with her and that at the |sleast, she saw his face looking toward Mr. Guidry’s vehicle while stopped in the second lane, then his vehicle jumped out in front of Mr. Guidry’s vehicle.

Ms. Prossen further testified that she did not think she would have allowed Mr. Guidry to drive thirty-five miles per hour in the turn lane as he testified he did. According to Ms. Prossen, she and Mr. Guidry planned to go to Sonic earlier that day and that it was to be their final destination. She stated that Mr. Guidry switched lanes when he saw the Sonic restaurant and denied that he was using the turn lane as a passing lane.

After the collision, Ms. Prossen reported to the police that Mr. Hannie and Mr. Landry were friends and had eaten a meal together before the collision. However, both Mr. Hannie and Mr. Landry denied knowing each other before the collision. Ms. Prossen testified that because the men were very nicely dressed, “they did not look like typical Louisiana men,” so she assumed that they knew each other.

At the conclusion of the trial, the trial court determined that Mr. Guidry improperly used the center turn lane as a passing lane and found him 100% at fault. The trial court awarded Mr. Hannie special damages as the parties stipulated and general damages in the amount of $9,000.00.

The defendants appealed, assigning error with the trial court’s assessment of fault. Mr. Hannie answered the appeal, seeking an increase in general damages and damages for frivolous appeal.

ASSIGNMENTS OF ERROR

The defendants assign as error the trial court’s assessment of 100% fault to Mr. Guidry, asserting that he was free from fault. They first argue that the trial court committed legal error in its conclusion of law as to the permissible distance a motorist Ifiinay travel in a center turn lane when intending to make a left turn from that lane; therefore, they argue that this court should conduct a de novo review of the trial court’s assessment of fault. The defendants next argue that even if the manifest error standard of review is applied, Mr. Guidry was completely free from fault.

DISCUSSION

The trial court prefaced its fault determination with the following explanation of the lane markings where the collision occurred and their meanings:

A no passing line is a single solid yellow line and it is used on two-lane roads to indicate zones where passing is prohibited.... A motorist is allowed to cross this line to make a turn.
... There is something called two-way left turn channelization markings, and they are combinations of solid yellow and dashed yellow lines that are in the center of the roadway. The designated center lane, a center lane that is designated in this way may be used by vehicles traveling in either direction for left turn maneuvers only and this lane must never be used for passing.

See La. Driver’s Guide “D” and “E,” p. 30-38.

After providing its appreciation of the lane markings, the trial court outlined its reasons for determining that Mr. Guidry was 100% at fault for the collision:

I find that the defendant entered the center lane at nearly the same time that the plaintiff made the decision to enter the center lane from the left lane of southbound traffic on Kaliste Saloom Road.... The impact occurred within the two-way left-turn channelization markings. The area of the roadway within this marking is reserved for vehicles making left turns. It is unlawful for motorists to use this section of the roadway to pass vehicles that are located in the travel lanes. Thus, the defendant was engaged in unlawful activity from the time he passed ... the solid yellow line to the time that he collided with the plaintiff. The plaintiff was attempting to enter the northbound travel lanes of Kaliste Saloom Road from a private parking lot. The plaintiffs duty was described by the legislature in Revised Statute 32:124, which says the driver of a vehicle about to enter or cross a highway from a private road driveway, alley, or building, shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any alley |7driveway, and shall yield the right-of-way to any' pedestrian as may be necessary to avoid collision, and shall yield the right-of-way to all approaching vehicles so close as to constitute an immediate hazard. Now, there is case law in this Circuit that clarifies that the driver confronting the situation described in this statute must yield to the traffic that is on the favored roadway, and the favored roadway I understand to mean the portions of the roadway that are being used in a lawful way by the people who are using it. And so in this situation the favored roadway were the north and southbound lanes. The testimony is that ... the plaintiff came to a stop at the stop sign in the parking lot prior to entering the roadway. He did not enter the roadway until the driver[s] who [were] stopped in the southbound lane on the outside of the road and the inside of the road gave permission by a hand signal to the plaintiff to enter the roadway. So the plaintiff yielded, and the individuals who had the right-of-way again yielded the right-of-way to the plaintiff. The defendant did not have a right to use the center line as a passing lane. The defendant’s conduct was a substantial factor in bringing about the harm to the plaintiff. The defendant ... did use the center lane as a passing lane and the plaintiff would not have been harmed but for the defendant’s actions because the defendant’s actions were using that lane improperly and if he had not used the lane improperly this collision would not have occurred. This defendant did owe a duty to the plaintiff to not use the center lane as a passing lane. He breached this duty. The risk and harm caused was within the scope of the protection afforded by the duty that was breached.

(Emphasis added.)

Louisiana Revised Statutes 32:124, as the trial court quoted, governs a driver’s-entrance to a highway from private property. The use of center turn lanes is governed by La.R.S. 32:82, which provides:

A. Whenever any highway has been divided into two roadways by a median, physical barrier, or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right hand roadway and no vehicle shall be driven over, across or within the median, barrier or section, except through an improved opening or at a cross over or intersection established under authority of this Chapter.
B. No vehicle shall cross the painted continuous centerline of any multiple lane highway, except for the purpose of making a turn.

(Emphasis added.)

\pl)e Novo Review

The defendants first contend that we must conduct a de novo review of the trial court’s assessment of fault to Mr. Guidry because the trial court committed an error of law concerning the permissible distance a motorist may travel in a center turn lane. The basis of this contention is the trial court’s observation that with regard to the two-way left-turn channelization markings of the center turn lane, it could not “conceive of a situation in which a motorist may lawfully use more than two vehicle lengths of that center lane that contains two-way left-turn to accomplish a left turn maneuver.”

The trial court considered the directives contained in the Louisiana Driver’s Guide Classes “D” and “E” in determining that Mr. Guidry was improperly using the center turn lane as a passing lane. We have reviewed these directives in light of La. R.S. 32:82 and find them illustrative of the restricted use of center turn lanes. See Brewer v. J.B. Hunt Transp., Inc., 09-1408, 09-1428 (La.3/16/10), 35 So.3d 230, aff'g 08-1666 (La.App. 1 Cir. 3/18/09), 9 So.3d 932 (where the supreme court affirmed the first circuit’s de novo determination that both plaintiff and defendant drivers were at fault in causing the accident at issue but increased the fault assessed to the defendant driver; both courts relied on directives set forth in the Driver’s Guide for their assessments).

Even though, under the facts of this case, there was no need for the trial court to enunciate a bright-line, two-car-length rule for the execution of a left turn in a center turn lane, we find no error with the trial court’s determination that a motorist can only travel a limited distance in a center turn lane without violating this provision. Clearly, in the factual context of this case, Mr. Guidry was undeniably 1 flusing the center turn lane to pass traffic in the travel lanes, not to make a left turn, as the minimum distance he had to travel to make a left turn was 697 feet.

Furthermore, an error involving the application of an incorrect principle of law warrants a de novo review by the appellate court only if legal error was prejudicial, meaning it “materially affect[ed]” the outcome of the trial court’s fact finding process and “deprive[d] a party of substantial rights.” Evans v. Lungrin, 97-541, p. 7 (La.2/6/98), 708 So.2d 731, 736. As shown by the discussion which follows, if the trial court’s conclusion that a motorist who traveled more than two car lengths in a center turn lane without turning did so in violation of La.R.S. 32:82 was legal error, it did not prejudice Mr. Guidry; therefore, a de novo review is not warranted.

Manifest Error Review

The trier of fact’s allocation of fault required by La.Civ.Code art. 2323 is a fact determination. Gregor v. Argenot Great Cent. Ins. Co., 02-1138 (La.5/20/03), 851 So.2d 959. Factual determinations in civil cases are reviewed under the manifest error-clearly wrong standard of review. Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. This standard “precludes the setting aside of the [trial] court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.” Id. at 1087.

Review of credibility determinations under the manifest error standard requires that 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. Hebert v. Rapides Parish Police Jury, 06-2001, 06-2164 (La.4/11/07), 974 So.2d 635. Unless documents or objective evidence so contradict the witness’s story or the ImStory itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, a fact finder’s determination that is based on a credibility determination can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Assessment of Fault

The defendants argue that the trial court’s assessment of fault is inaccurate because Mr. Guidry was traveling on the favored street; therefore, they contend that Mr. Hannie owed a higher duty of care than Mr. Guidry.

The care Mr. Hannie owed was addressed by this court in Shelvin v. Allstate Insurance Co., 99-833 (La.App. 3 Cir. 11/3/99), 747 So.2d 160, 162, (quoting Valin v. Barnes, 550 So.2d 352, 355 (La.App. 3 Cir.), writ denied, 552 So.2d 399 (La.1989)) (emphasis added):

A motorist who is about to enter a roadway from a private driveway is required to yield the right of way to all approaching vehicles so close as to constitute an immediate hazard. Unusual, extreme, and high care toward favored traffic is required of such a motorist under the case law. Conversely, the duty of the driver on the favored street toward the intruding motorist is the much lesser ordinary care and that driver generally may rely on the assumption or presumption that those vehicles entering the roadway from less favored positions such as a private drive will not drive into the path of favored traffic. The motorist who is otherwise proceeding lawfully on the favored street is not required to look out for or search in anticipation of careless drivers who might enter his right of way from a private driveway in violation of the statute. [La.R.S. 32:121.] The presumption or assumption may not be relied on by a motorist who is proceeding unlawfully before or after he sees the intruding vehicle.

Mr. Guidry cannot rely on the presumption drivers may enjoy when they proceed lawfully on a favored street because he was using the center turn lane for passing in contravention of La.R.S. 32:82. Accordingly, Mr. Guidry’s claim that he could rely on that presumption is without merit. Furthermore, even if Mr. Guidry had Innot been using the center turn lane to pass other traffic, he could have been assessed with fault if the facts warranted. See Slagel v. Roberson, 37,791, 37,792, 37,-793 (La.App. 2 Cir. 11/18/03), 858 So.2d 1288, writ denied, 03-3508 (La.3/12/04), 869 So.2d 824.

Our review of the record shows that the testimonies of Mr. Hannie and Mr. Landry fully supported the trial court’s factual and legal determinations that Mr. Hannie fulfilled his duty of care as he attempted to enter Kaliste Saloom Road and that Mr. Guidry is 100% at fault for the collision because he used the turn lane for passing. In particular, it is clear that the trial court relied primarily on Mr. Landry’s testimony in determining fault, finding this disinterested witness’s testimony credible. According to Mr. Landry, Mr. Hannie engaged in a “careful process” to make his left turn, and there was nothing more he could have done to avoid the collision. On the other hand, Mr. Landry saw Mr. Guidry exit the travel lane and enter the turn lane “in an erratic” manner from six or seven vehicles behind the vehicles that were stopped to allow Mr. Hannie to turn left, then accelerate quickly and proceed at “a rapid rate of speed,” which he thought was “way too fast for the turning lane.”

Moreover, Ms. Prossen’s and Mr. Gui-dry’s testimonies further support the trial court’s fault assessment. Ms. Prossen’s testimony shows that she believed traveling thirty-five miles an hour in the center turn lane was too fast. Additionally, Mr. Guidry admitted that he had to travel a distance of 697 feet from where he entered the turn lane before he could make a left turn, and Ms. Prossen’s testimony that she could see Mr. Hannie’s car at all times discredited his testimony that the vehicles that were stopped to allow Mr. Hannie to turn left were large and blocked his 112view of Mr. Hannie’s car. Hence, all the witnesses’ testimonies demonstrate that Mr. Guidry did not act as a reasonable motorist under the circumstances, as he failed to keep a proper lookout and respond accordingly. Allstate Ins. Co. v. Batiste, 96-181 (La.App. 3 Cir. 6/12/96), 676 So.2d 747. See also La.R.S. 32:58 (providing that the failure to drive in a careful and prudent manner constitutes careless operation of a vehicle). For these reasons, the trial court’s conclusion that Mr. Guidry was 100% at fault is not manifestly erroneous.

The defendants cite other cases in support of their claim that the trial court’s assessment of fault is wrong. As shown below, we find that the cited cases are factually dissimilar and not applicable to this matter. Cripps v. Kennedy, 364 So.2d 243 (La.App. 3 Cir.1978), writ denied, 366 So.2d 917 (La.1979), involved a rear-end collision that occurred when a vehicle exited a parking lot, made a right turn, and was struck by a vehicle exceeding the posted speed limit. This court refused to reverse the trial court’s determination that contributory negligence on the part of the driver that exited the parking lot barred his recovery, noting that the primary duty of avoiding a collision rests with the driver of a vehicle entering a public highway from a secondary highway and that the driver of the other vehicle could not avoid the accident. Unlike Cripps, which applied rules that pre-dated comparative fault, the record herein shows Mr.' Hannie, the driver exiting the parking lot, proceeded cautiously and Mr. Guidry could have avoided the accident by the exercise of reasonable care.

In Miller v. Keal, 29,564 (La.App. 2 Cir. 5/7/97), 694 So.2d 569, writ denied, 97-1751 (La.10/13/97), 703 So.2d 620, the court determined that a motorist entering the roadway who relied on other motorists to signal that it was safe for her to enter 11sthe center turn lane was 70% at fault for the collision between her vehicle and a vehicle traveling in the turn lane. That is not the case here: Mr. Landry testified that Mr. Hannie did everything he could to avoid a collision and that Mr. Guidry entered the turn lane and accelerated quickly just as Mr. Hannie proceeded into the turn lane. Furthermore, the evidence in Miller established that the center turn lane was “not clearly and properly marked,” causing the trial court “some concerns to the benefit of [the defendant driver] as to whether or not he should have been in that portion of the middle lane or not.” Id. at 572. Importantly, the trial court found that the “ ‘fact that [the defendant driver] was traveling in the turn lane in and of itself did not cause the accident.’” Id. The trial court in the case now before us found otherwise under the facts presented. We do not find that determination erroneous.

Lastly, in Kyle v. New Hampshire Insurance Co., an unpublished opinion bearing docket number 06-796, 2007 WL 439091 (La.App. 1 Cir. 2/9/07), the trial court’s assessment of 75% fault to a driver in Mr. Hannie’s position was upheld on appeal although the driver in Mr. Guidry’s position was using the center turn lane as a traveling lane. As the appellate court noted, the trial court specifically found the claim of the driver entering the roadway from a parking lot that the driver in the turn lane “just flew right into his vehicle” less plausible than the claim of the turning driver. Again, the facts present in Kyle differ from the facts herein, such that the holding therein does not affect our conclusion in this matter.

| u.Damages

Mr. Hannie answered the appeal, seeking an increase in general damages; he complains that the trial court’s $9,000.00 general damage award is unreasonably low.

It is well settled that the assessment of damages is a fact determination “entitled to great deference on review.” Guillory v. Lee, 09-75, p. 14 (La.6/26/09), 16 So.3d 1104, 1116. Accordingly, when reviewing general damage awards, an appellate court’s role is to review the trier of fact’s exercise of discretion, not to decide what it considers an appropriate award. 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). If there is no clear abuse of discretion in the trier of fact’s award, it must stand. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

Mr. Hannie testified that he suffered lacerations to his face, one of his hands, stiffness, soreness in his neck, clavicle area, and his back as a result of the collision. He was transported to the hospital and x-rayed to determine whether his clavicle had been fractured. X rays showed his clavicle was not fractured, and he was prescribed pain medication and released a few hours later. Mr. Hannie related that he began feeling pain in his neck almost immediately after the accident and that a day or so later he began suffering pain in his low back. He further testified that the pain and stiffness in his neck lasted for two to three weeks; the pain in his clavicle and chest area lasted a couple of months; and the pain in his back peaked approximately four months after the accident but continued to become symptomatic every few months at the time of the trial. He did not seek any medical treatment other than the treatment he received at the emergency room on the day of the accident.

|15In light of the limited treatment Mr. Hannie sought for his injuries, we cannot say the trial court abused its vast discretion in awarding $9,000.00 for general damages.

Frivolous Appeal

As provided in La.Code Civ.P. art. 2164, which allows an appellate court to award damages if an appeal is deemed frivolous, Mr. Hannie also answered this appeal, requesting damages and attorney fees for a frivolous appeal.

It is well settled that appeals are favored in Louisiana. Blane Devillier Trucking, Inc. v. Authement, 03-590 (La.App. 3 Cir. 11/5/03), 858 So.2d 795. Because La.Code Civ.P. art. 2164 is penal in nature, it must be strictly construed. Ray v. Leatherman, 96-542 (La.App. 3 Cir. 10/9/96), 688 So.2d 1133, writ denied, 96-2709 (La.1/6/97), 685 So.2d 123 (citing Hampton v. Greenfield, 618 So.2d 859 (La.1993)). Pursuant to Article 2164, damages for frivolous appeal may be awarded when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that appellants’ counsel does not seriously believe in the position he advocates. Gallien v. Winn-Dixie, 96-832 (La.App. 3 Cir. 12/11/96), 685 So.2d 531.

Although we find no merit in the arguments the defendants presented on appeal, it is clear that defense counsel seriously believes in the position he advocated on behalf of his clients herein. Accordingly, this is not a frivolous appeal, and we cannot award damages and attorney fees.

DISPOSITION

For these reasons, we find no error with the trial court’s assessment of fault or award of general damages, and affirm the judgment of the trial court in all respects. |in The plaintiffs request for damages and attorney fees is denied. Costs of this appeal are assessed to Ray Guidry and State Farm Mutual Automobile Insurance Company.

AFFIRMED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Pursuant to La.Code Civ.P. art. 2168 unpublished opinions of "the courts of appeal shall be posted ... and may be cited as authority....”


author: GENOVESE, Judge.

text:
    Lonnie REESE v. DRESSER VALVE INDUSTRIES.
    No. 10-241.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Lonnie Reese, Pineville, Louisiana, for Plaintiff/Appellant, In Proper Person.
    Christopher P. Ieyoub, Plauche, Smith & Nieset, LLC, Lake Charles, Louisiana, for Defendants/Appellees, Dresser Valve Industries and CNA Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| )In this workers’ compensation case, Claimant, Lonnie Reese, appeals the judgment of the Office of Workers’ Compensation in favor of his employer, Dresser Valve Industries, and its workers’ compensation insurer, CNA Insurance Company (collectively Dresser), denying his claim for mileage reimbursement and denying his allegation of improper calculation of his workers’ compensation rate due to a prior social security offset. Also before this court is Dresser’s Motion to Strike the exhibits appended to Mr. Reese’s appellate brief, which motion was referred to the merits of this appeal. For the following reasons, we grant the Motion to Strike, and we affirm the judgment.

FACTS

Mr. Reese was injured on January 8, 1987, while in the course and scope of his employment with Dresser. On June 19, 2006, Mr. Reese filed a Disputed Claim for Compensation (1008), alleging that Dresser failed to properly pay mileage expenses that Mr. Reese incurred in connection with his medical treatment and the filling of his prescriptions. On July 21, 2008, ' Mr. Reese amended his 1008 to further allege that his workers’ compensation rate was incorrect.

Following trial on December 1, 2009, the Workers’ Compensation Judge (WCJ) ruled in favor of Dresser on both issues and signed a judgment on December 16, 2009. Mr. Reese appeals. In connection with the present appeal, Dresser has filed a Motion to Strike the exhibits appended to Mr. Reese’s appellate brief.

ISSUES

The issues presented by Mr. Reese on appeal include his entitlement to “[mjile-age reimbursement for doctors visits and prescription pick-ups” and whether the “[sjocial [sjecurity offset [was] taken incorrectly.”

J¡LAW AND DISCUSSION

Motion to Strike

Dresser filed a Motion to Strike, asserting that the three exhibits appended to Mr. Reese’s appellate brief are “an improper offering” on appeal. Dresser argues that pursuant to La.Code Civ.P. arts. 2128 and 2164, this court is precluded from considering these exhibits which are not part of the trial court record. We agree.

Pursuant to La. [Code Civ.]P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments and other rulings, unless otherwise designated. La. [Code Civ.jP. arts. 2127 and 2128; Official Revision Comment (d) for La.[Code Civ.jP. art. 2127. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Davis v. Anderson, 451 So.2d 1302 (La.App. 1st Cir.1984).
Tranum v. Hebert, 581 So.2d 1023, 1026 (La.App. 1 Cir.1991), writ denied, 584 So.2d 1169 (La.1991). Additionally, “[t]he appellate briefs of the parties are not part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits attached thereto, if those facts are not in the record on appeal.” |s Id. at 1027 (citing Capital Drilling Co. v. Graves, 496 So.2d 487 (La.App. 1 Cir.1986); Fred H. Moran Constr. Corp. v. Elnaggar, 441 So.2d 260 (La.App. 1 Cir.1983)).

Chavers v. Bright Truck Leasing, 06-1011, pp. 2-3 (La.App. 3 Cir. 12/6/06), 945 So.2d 838, 841, writ denied, 07-304 (La.4/5/07), 954 So.2d 141.

In the instant matter, the record reveals that the exhibits attached to Mr. Reese’s appellate brief were not introduced at the trial of this matter and are not part of the trial court record. These exhibits are, therefore, not properly before this court for consideration. Consequently, Dresser’s Motion to Strike is granted.

Mileage Reimbursement

Mr. Reese confirmed at trial that he had been paid mileage from the date of his injury through June of 2006. Notably, on the mileage reimbursement he was seeking, he admitted at trial that he had failed to submit the necessary documentation to Dresser since June of 2006. The transcript contains the following colloquy:

JUDGE BRADDOCK:
Okay. Now, what evidence do you have to demonstrate that you have been improperly paid or not paid and what mileage you claim is due to you?
MR. REESE:
Well, I have no evidence of anything, because I have nothing that they sent me. They sent me no money for mileage, because I couldn’t get them to file it. I sent it in, they sent it back....
JUDGE BRADDOCK:
Well, apparently they have not done what you’d like for them to do.
MR. REESE:
Yes, sir.
JUDGE BRADDOCK:
And so you’ve sued them about that.
1„MR. REESE:
Yes, sir.
JUDGE BRADDOCK:
And so we need some evidence to substantiate your claims against them.
MR. REESE:
I don’t understand what kind of evidence you would want. I could fill out any kind of paperwork and bring in to you and say this [is] what they didn’t pay, but it wouldn’t be evidence!,] it would be something I wrote on a paper that I say that they owe me. That’s it, that’s not evidence.

When questioned by counsel for Dresser, Mr. Reese reiterated that he had failed to submit any documentation to Dresser for reimbursement of mileage expense since 2006.

Louisiana Revised Statutes 28:1203(D) provides that an “employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines, and prosthetic devices, which the employer is required to furnish under this Section!.]” Although recoverable, “a claimant must present evidence of such expenses, such as ‘the actual cost of a trip to the hospital or doctor’s office or the number of miles traveled for such a trip.’ ” Lang-Parker v. Unisys Corp., 00-880, p. 16 (La.App. 1 Cir. 10/5/01), 809 So.2d 441, 452 (quoting Gentile v. Baton Rouge Gen. Med. Ctr., 95-348 (La.App. 1 Cir. 11/9/95), 665 So.2d 422, 429). See also Brown v. Big Star of Bastrop, Inc., 31,530 (La.App. 2 Cir. 1/29/99), 728 So.2d 541; Lemoine v. Hessmer Nursing Home, 94-836 (La.App. 3 Cir. 3/1/95), 651 So.2d 444.

In the case at bar, Mr. Reese presented absolutely no evidence of the expenses he allegedly incurred. Additionally, he admitted under cross-examination that he had | anot submitted any documentation to Dresser for mileage reimbursement from 2006 up through the filing of his amended 1008 in July of 2008. In the absence of such proof, Mr. Reese has failed to prove his entitlement to mileage reimbursement. Therefore, the WCJ was not manifestly erroneous in denying Mr. Reese’s claim for mileage reimbursement.

Workers’ Compensation Rate/Social Security Offset

Mr. Reese asserts that beginning in 1997 he was paid an incorrect workers’ compensation rate. He explained at trial that beginning in 1997 a social security offset was taken, and “it was done wrong.” However, Mr. Reese admitted that a hearing was held in connection therewith. Additionally, he admitted that he received payment of a $2,000.00 penalty that was assessed to Dresser in connection with the issues raised at that hearing. Notably, Mr. Reese introduced no evidence on this issue at trial.

In defending this claim, Dresser introduced a judgment dated July 14, 1997, following a trial on April 3, 1997, decreeing that Dresser was entitled to “an offset,” effective April 3, 1997, “in accordance with those figures stipulated to at trial.” The WCJ relied upon the July 14, 1997 judgment in denying Mr. Reese’s present claims, stating that the judgment “indicates that a hearing regarding !the][s]ocial [security [o]ffset was held on April 3rd of 1997.” Additionally, the WCJ noted that Mr. Reese was present at the hearing, albeit without counsel. Noting the express language of the judgment, and Mr. Reese’s failure to appeal that judgment, the WCJ judge concluded that the only evidence before the court on this issue was the “!j]udgment in July of 1997[,] which is a final [judgment.”

| (Although Mr. Reese argues on appeal that the amount of the social security offset being taken since 1997 was incorrect, Dresser notes that Mr. “Reese presented zero evidence at trial as to the alleged impropriety of the offset.” Dresser also contends that Mr. “Reese stipulated to the amount of the offset in 1997 and stipulated judgments cannot be appealed.” Finally, Dresser argues that “[t]he 1997[j]udgment stipulating the amount of the offset is a final judgment and serves as the law of the case on the issue.” We agree.

Based upon the record of these proceedings, we find that the WCJ properly denied Mr. Reese’s claim of an incorrect calculation of his workers’ compensation rate resulting from a prior social security offset. We find no manifest error in the December 16, 2009 judgment decreeing Mr. Reese’s “compensation rate of $180.97 [to be] the proper rate pursuant to stipulated judgment dated July 14,1996.”

DECREE

For the foregoing reasons, the Motion to Strike filed by Dresser Valve Industries and CNA Insurance Company is granted. The judgment of the Office of Workers’ Compensation of December 16, 2009, is affirmed. Costs of this appeal and the Motion to Strike are assessed to Lonnie Reese.

MOTION TO STRIKE GRANTED.

JUDGMENT AFFIRMED.

      . Louisiana Code of Civil Procedure article 2128 provides:
      The form and content of the record on appeal shall be in accordance with the rules of the appellate court, except as provided in the constitution. However, within three days, exclusive of holidays, after taking the appeal the appellant may designate in a writing filed with the trial court such portions of the record which he desires to constitute the record on appeal. Within five days, exclusive of holidays, after service of a copy of this designation on the other party, that party may also designate in a writing filed with the trial court such other portions of the record as he considers necessary. In such cases the clerk shall prepare the record on appeal as so directed, but a party or the trial court may cause to be filed thereafter any omitted portion of the record as a supplemental record. When no designation is made, the record shall be a transcript of all the proceedings as well as all documents filed in the trial court.

      . Louisiana Code of Civil Procedure article 2164 provides:
      The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

      . The standard of review to be applied by an appellate court when reviewing factual findings of a WCJ is that of manifest error/clearly wrong. Cormier v. State, Dep’t of Wildlife and Fisheries, 07-642 (La.App. 3 Cir. 11/21/07), 970 So.2d 1216, writ denied, 07-2466 (La.2/15/08), 976 So.2d 186.