author: PER CURIAM. HUGHES, J.

text:
    [PARENTS OF MINOR CHILD] v. George J. CHARLET, JR., Deceased, Charlet Funeral Home, Inc., [The Priest], and the Roman Catholic Church of the Diocese of Baton Rouge.
    No. 2013-C-2879.
    Supreme Court of Louisiana.
    April 4, 2014.
   PER CURIAM.

I, This writ presents the issue of whether a party is precluded from offering any evidence of her confession and whether a priest has a duty to report allegations of sexual abuse perpetrated on a minor parishioner. For the following reasons, we grant the plaintiffs’ writ, reversing and vacating the court of appeal’s judgment and reinstating the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On July 6, 2009, plaintiffs, the parents of a minor daughter, filed a petition for damages suffered by them and their daughter as a result of the alleged inappropriate and sexual acts perpetrated on the minor child. They named as defendants: the alleged perpetrator, then-deceased George J. Charlet, Jr., a well-known, long-time parishioner and active member of Our Lady of the Assumption Catholic Church; Char-let Funeral Home, Inc. of which Mr. Char-let was the alleged President; the priest, for allegedly being a mandatory reporter who failed to report the abuse allegations; and the Roman Catholic Church of the Diocese of Baton Rouge (“Church”), alleging vicarious liability for the alleged misconduct of the 12priest in failing to report the sexual abuse, as well as for the negligent training and supervision of the priest.

The petition alleges during the summer of 2008, when the minor child was approximately fourteen years of age, there began an exchange of emails from Mr. Charlet, who was then 64 years of age, to the minor child, which soon increased in frequency and became “laced with seductive nuances.” The petition further details the continued wrongful acts of Mr. Charlet, which culminated with kissing and fondling the minor child.

Plaintiffs allege the minor child became confused and scared over the evolving “relationship” with Mr. Charlet, and on three separate occasions, she decided to seek spiritual guidance through confession with the defendant priest. The petition alleges on Tuesday, July 15, 2008, and Tuesday, July 29, 2008, prior to the 6:30 p.m. mass at the church, as well as on at least one other occasion after July 29, 2008, the minor child related to the priest during her confession Mr. Charlet had inappropriately touched her, kissed her, and told her that “he wanted to make love to her.” According to the petition, and consistent with the minor child’s subsequent deposition testimony, the priest allegedly responded she simply needed to handle the situation herself, because otherwise, “too many people would be hurt.” The minor child testified that, during one of those confessions, she told the priest what had happened and asked for advice on how to end it. According to her deposition testimony: “He just said, this is your problem. Sweep it under the floor and get rid of it.”

Subsequent to these three alleged confessions, the abusive acts continued. According to the allegations in the petition and the deposition testimony in the record, subsequent “meetings” were had-one between the priest and Mr. and Mrs. Char-let, and another between the Charlets and the minor child’s parents (the Isplaintiffs) — concerning the “obsessive number of emails and phone calls” between Mr. Charlet and the minor child and the seemingly inappropriate closeness between the two that had been observed by various parishioners.

Shortly thereafter, the parents confronted their minor daughter about the emails and phone calls, at which time, she confessed to the true nature of the relationship with Mr. Charlet, including details of the inappropriate sexual contacts. The plaintiffs immediately contacted Mr. Char-let, ordering him to cease contact with their daughter, and filed a formal complaint against Mr. Charlet with the East Feliciana Parish Sheriffs Department. According to the petition, the investigation was ongoing when Mr. Charlet died unexpectedly, after suffering a massive heart attack while in post-operative recovery, following knee-replacement surgery.

Shortly before trial was scheduled to commence in the present matter, the Church filed its motion in limine, seeking to prevent the plaintiffs from “mentioning, referencing, and/or introducing evidence at trial of any confessions that may or may not have taken place” between plaintiffs’ minor child and the priest, while the priest was acting in his official capacity as a Diocesan priest and hearing confession from his parishioner. The trial court denied the motion, finding the testimony of the minor child regarding the confession was relevant and, certainly, as the holder of the privilege, she was entitled to waive it and testify. However, the trial court “did recognize the conundrum with which [the priest] is presented, and I know his solution to that is going to be that he is not going to say anything about any confession.”

On supervisory writ, the Court of Appeal, First Circuit, reversed the trial court’s denial of the motion and granted its own peremptory exception of no cause |4of action. [Parents of Minor Child] v. Charlet, 13-0316 (La.App. 1 Cir. 10/21/13), 135 So.3d 724, 2013 WL 5712245. In so ruling, the appellate court reasoned:

Because we have concluded that the priest is not a mandatory-reporter, there can be no private or civil cause of action against him for any breach of a statute inapplicable to him; thus, any evidence or testimony, by anyone, regarding the occurrence of a confession, or the subject matter thereof, is wholly inadmissible, irrelevant, and non-probative. Accordingly, the motion in limine, seeking to exclude all such evidence, should have been granted.

Id. at 735. Moreover, it found no civil cause of action or civil remedy for violation of the mandatory reporter provision either to report or advise. Id. at 736. Accordingly, the Court of Appeal dismissed the plaintiffs’ claims against the priest and the Church in their entirety, with prejudice.

DISCUSSION

Taking the issues in the order they were disposed of by the lower courts, we first address whether the confession itself is admissible and whether the penitent is allowed to testify as to her confession. Relevant herein, La.Code Evid. art. 511 sets forth the priest-penitent privilege and provides:

A. Definitions. As used in this Article:
(1) A “clergyman” is a minister, priest, rabbi, Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is “confidential” if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
B. General rule of privilege. A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.
C. Who may claim the privilege. The privilege may be claimed by the person or by his legal representative. The clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person.

|r,La.Code Evid. art. 511 (emphasis added). Under its provisions, the privilege clearly belongs to the penitent-communicant, not to the priest: “A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman-” La.Code Evid. art. 511(B); see also La.Code Evid. art. 511, Comments-1992 ©(“Under this Article the privilege clearly belongs to the communicant”.). It follows, if the penitent waives the privilege, the priest cannot then raise it to protect himself as he can only “claim the privilege on behalf of the person,” not in his own right. La.Code Evid. art. 511(C). Therefore, we find the appellate court erred in granting the Church’s motion in limine, excluding all evidence of the confession in its entirety as the child/penitent is free to testify and introduce evidence as to her own confession.

The next question is whether the appellate court erred in dismissing the plaintiffs’ action against the priest and the Church on its own peremptory exception of no cause of action. In its ruling, the appellate court first noted there is no duty on a clergy member, the breach of which would sustain a private or civil cause of action. This reasoning, however, disregards our general concept of liability set forth in our Civil Code that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it,” La. Civ. Code art. 2315, and “[e]very person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill,” La. Civ.Code art. 2316. It likewise disregards the duty imposed by law on members of the clergy under La. Child. Code arts. 603(15) and 609.

Under the provisions of La. Child Code art. 603(15), a mandatory reporter is defined as “any of the following individuals”:

(c) “Member of the clergy” is any priest, rabbi, duly ordained clerical deacon or minister, Christian Science practitioner, or other similarly situated functionary of a religious organization, except that |fihe is not required to report a confidential communication, as defined in Code of Evidence Article 511, from a person to a member of the clergy who, in the course of the discipline or practice of that church, denomination, or organization, is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of the church, denomination, or organization has a duty to keep such communications confidential. In that instance, he shall encourage that person to report the allegations to the appropriate authorities in accordance with Article 610.

La. Child. Code art. 603(15). A member of the clergy as a mandatory reporter under this provision then has a mandatory duty to report abuse in accordance with the following provisions of La. Child. Code art. 609:

Notwithstanding any claim of privileged communication, any mandatory reporter who has cause to believe that a child’s physical or mental health or welfare is endangered as a result of abuse or neglect or that abuse or neglect was a contributing factor in a child’s death shall report in accordance with Article 610.

La. Child. Code art. 609.

Whether this particular priest owed this particular duty to the plaintiffs in this particular factual context is a mixed question of law and fact. See Kenney v. Cox, 95-0126, p. 1 (La.3/30/95), 652 So.2d 992 (Dennis, J., eoncurring)(noting there is a “distinction between the existence of a general duty of care (a legal question) and the ‘legal cause’ or ‘duty/risk’ question of the particular duty owed in a particular factual context (a mixed question of law and fact)”); see also Pitre v. Louisiana Tech University, 95-1466, 95-1487, p. 22 (La.5/10/96), 673 So.2d 585, 596 (Lemmon, J., concurring; joined by Kimball, J.)(noting “[i]n the usual case where the duty owed depends upon the circumstances of the particular case, analysis of the defendant’s conduct should be done in terms of ‘no liability1 or ‘no breach of duty.’”). Therefore, we find the appellate court erred in dismissing plaintiffs’ claims with prejudice as the question of duty/risk should be resolved by the factfinder at trial, particularly herein where there exists material issues of fact concerning whether the communications between the child and the priest were | confessions per se and whether the priest obtained knowledge outside the confessional that would trigger his duty to report.

Accordingly, we reverse and vacate the appellate court’s judgment in its entirety, we hereby render judgment reinstating the judgment of the trial court, and we remand this matter for further proceedings consistent with this opinion.

REVERSED and VACATED; RENDERED and REMANDED TO THE DISTRICT COURT.

WEIMER, J., recused.

HUGHES, J., concurs and assigns reasons.

HUGHES, J.

concurring.

|! While I respectfully concur with the court’s opinion, I wish to emphasize that the issue of whether the subject communication was in fact a “confession” needs to be addressed before the legalities can be resolved. I believe the integrity of the sacrament must be protected to the utmost, not only for the sake of the participants, but to protect the ability of individuals to freely confess their sins. I see nothing that prevents the child from testifying about her own communications to the priest.


source: Caselaw Access Project

license: Public Domain

text:
    Deborah F. PARKER v. OAKLEIGH APARTMENTS, LLC, Mitchell Management, Inc. of Alabama, Mitchell Management, Inc., and Scottsdale Insurance Company.
    No. 2014-C-0197.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Oakleigh Apartments, LLC, et al; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 586,598; to the Court of Appeal, First Circuit, No. 2013 CA 0618.

Denied.

GUIDRY, J., would grant.


text:
    Robert G. CLAITOR v. Laurance W. BROOKS, Jr.
    No. 2014-C-0198.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re R.G. Claitor’s Realty; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 600,913; to the Court of Appeal, First Circuit, No. 2013 CA 0178.

Denied.


text:
    Lance P. LEMOINE, Jr. v. BATON ROUGE PHYSICAL THERAPY, L.L.P. and BRPT-Lake Rehabilitation Centers, LLC.
    No. 2014-C-0201.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Lemoine Jr., Lance P.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 612,-777; to the Court of Appeal, First Circuit, No. 2013 CA 0404.

Denied.


text:
    Lisa PIKE v. DEPARTMENT OF REVENUE, OFFICE OF ALCOHOL AND TOBACCO CONTROL.
    No. 2014-C-0202.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Pike, Lisa; — Plaintiff; Applying For Writ of Certiorari and/or Review Louisiana Civil Service Commission, No. 17276; to the Court of Appeal, First Circuit, No. 2013 CA 0522.

Denied.


text:
    Diane Brown GARNER v. Bruce H. LIZANA and his Insurer, ABC Insurance Company, the Law Office of Bruce Lizana, a Professional Law Corporation and its Insurer, XYZ Insurance Company.
    No. 2014-C-0208.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Law Office of Bruce H. Lizana; Lizana, Bruce H.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 692-698; to the Court of Appeal, Fifth Circuit, No. 13-CA-427.

Denied.


text:
    STATE of Louisiana v. Girbaud Jamar EISLEY.
    No. 2014-KK-0241.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Eisley, Girbaud Eisley; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 10-12-0485; to the Court of Appeal, First Circuit, No. 2013 KW 1939.

Denied.


text:
    STATE of Louisiana v. Krazy FIREBIRD.
    No. 2014-KK-0242.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Firebird, Krazy; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 05-3197; to the Court of Appeal, Fifth Circuit, No. 13-KH-770.

Denied.

HUGHES, J., would grant.


text:
    Gary B. GREER v. WHOLE FOODS MARKET, INC.
    No. 2014-C-0258.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Whole Foods Market, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 8 No. 2011-02463; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0455.

Denied.


text:
    Wilton T. McCAY, III and Kelly Virginia McCay v. Dr. Mark B. WORKMAN.
    No. 2014-CC-0260.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re McCay, Kelly Virginia; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, Nos. 539-499, 660-344; to the Court of Appeal, Fifth Circuit, No. 13-C-826.

Denied.

HUGHES, J., would grant.


text:
    Shannon JONES and Jennifer Jones, Individually and on Behalf of their Daughter, Haley Jones v. ABC INSURANCE COMPANY and Cobe Cardiovascular, Inc., et al.
    No. 2014-C-0262.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Boxer & Gerson L.P.; Roth, Gary B.; — Other(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. S, No. 535-525; to the Court of Appeal, Fifth Circuit, No. ll-CA-632.

Denied.

HUGHES, J., would grant.


text:
    Shannon JONES and Jennifer Jones, Individually and on Behalf of their Minor Daughter Haley Jones v. ABC INSURANCE COMPANY and Cobe Cardiovascular, Inc., et al.
    No. 2014-C-0263.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Bryan, Tracey Rannals; David, Robert J.; Gainsburg, Benjamin, David, Meunier & Warshauer, LLC; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 535-525; to the Court of Appeal, Fifth Circuit, No. ll-CA-632.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Chris POLIZZI v. CLERK OF COURT and Court Reporter, 24TH J.D.C., et al.
    No. 2014-CP-0268.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Polizzi, Chris; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 722-672; to the Court of Appeal, Fifth Circuit, No. 13-C-989.

Denied.

2


text:
    BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE v. 2226 CANAL STREET, L.L.C., et al.
    No. 2014-CC-0270.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re 2226 Canal Street, L.L.C., et al.;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2010-07575; to the Court of Appeal, Fourth Circuit, No. 2013-C-1413.

Denied.


text:
    SUCCESSION OF Thomas A. HARRISON.
    No. 2014-C-0273.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Speed, Susan C; — Other; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 549712; to the Court of Appeal, Second Circuit, No. 48,432-CA.

Denied.


text:
    STATE of Louisiana v. Donald SAUVIAC.
    No. 2014-CC-0285.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Sauviac, Donald; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 2010-06054; to the Court of Appeal, Fourth Circuit, No. 2013-C-1353.

Denied.


text:
    STATE of Louisiana v. Michael J. BOUDREAUX.
    No. 2014-OK-0338.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Boudreaux, Michael J.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. G, No. 26435; to the Court of Appeal, First Circuit, No. 2013 KA 0834.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Alvin R. THOMAS v. STATE of Louisiana.
    No. 2014-KH-0360.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Thomas, Alvin R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 11-13-0830; to the Court of Appeal, First Circuit, No. 2013 KW 2014.

Denied.


author: ROBERT A. CHAISSON, Judge.

text:
    Curtis PITRE v. Richard MARINO, M.D., Jose Olivia, M.D. and Lakeside Hospital Medical Staff Association d/b/a Lakeside Hospital.
    No. 13-CA-711.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.
    Darleen M. Jacobs, Al A. Sarrat, Jr., Melvin J. Burmaster, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    Conrad Meyer, Patrick R. Follette, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   ROBERT A. CHAISSON, Judge.

| ¡.The Louisiana Patient’s Compensation Fund and its Oversight Board (PCF) appeal from a summary judgment in this medical malpractice case in favor of Curtis Pitre, the surviving spouse of Danielle Pi-tre, who died during a C-Section birth procedure. For the following reasons, we vacate that judgment and remand the matter to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The facts of this case, as summarized in the PCF brief, are for the most part undisputed. On the morning of September 7, 2000, Mrs. Pitre was admitted to the hospital for a planned caesarian section under the care of Dr. Richard Marino. The procedure was uneventful, and at 12:35 p.m. the Pitres’ son was born. At 5:20 p.m., Mrs. Pitre was taken from the labor room to the post-partum room. Several hours later, at 8:20 p.m., she complained of difficulty breathing. A nurse immediately went in to check on her and found her in respiratory distress and |3wheezing. Other hospital staff responded immediately, and by 8:30 p.m., Dr. Jose Olivia, the duty doctor, appeared and ordered a Lasix IV, morphine, and a chest X-ray. Dr. Marino arrived soon thereafter, and Mrs. Pitre was started on oxygen. Further efforts were made on her behalf, but unfortunately, she died at 9:37 p.m.

In August of 2001, Mr. Pitre commenced the present action individually and on behalf of his two minor children. Years of litigation resulted in an eventual settlement with Dr. Marino and his insurer for $100,000, which was approved by the court. On February 20, 2013, Mr. Pitre added the Louisiana Patient’s Compensation Fund as a defendant, seeking damages of an additional $400,000, the statutory cap. Five weeks later, on April 1, 2013, Mr. Pitre filed a motion for summary judgment.

In support of this motion, Mr. Pitre attached the report of the medical review panel (which exonerated all defendants), a list of alleged undisputed facts, and a statement of legal principles. One of the alleged facts is that Mr. Pitre’s expert, Dr. Michael Cardwell, offered an opinion in deposition that Dr. Marino’s negligence caused Mrs. Pitre’s death. Dr. Cardwell’s deposition was not included with the memorandum.

Mr. Pitre’s argument in the motion for summary judgment was that because Dr. Marino’s settlement was an admission that his treatment fell below the standard of care, and because Mrs. Pitre died, then the admitted negligence was the cause of her death. The trial judge subscribed to this argument and ruled that Mr. Pitre was, without any additional evidence, entitled to damages of $400,000 against the PCF. The judgment was designated as appealable pursuant to La. C.C.P. art. 1915(B)(1), and this appeal followed.

J4DISCUSSION

The PCF concedes here that there is no other health care provider implicated in this case, nor is there any claim of comparative fault on Mrs. Pitre’s part. The issue before us, as recognized by all parties, is whether an admission of negligence with payment of $100,000 in damages by a health care provider absolves a plaintiff from the burden of proving that damages in excess of $100,000 were caused by the admitted negligence. Clearly, it does not.

The above question was addressed in Graham v. Willis-Knighton Medical Center, 97-188 (La.9/9/97), 699 So.2d 365, rehearing denied, 699 So.2d 1089 (La.10/10/97). There, the Court held directly that:

We now conclude that the legislative intent of “liability” in Section 1299.44(C)(5) was that the payment of $100,000 in settlement establishes proof of liability for the malpractice and for damages of at least $100,000 resulting from the malpractice, which is a very significant benefit to the medical malpractice victim. However, at the trial against the [Patient Compensation] Fund, the plaintiff has the burden of proving that the admitted malpractice caused damages in excess of $100,000. (Id. at 372)

That holding was reaffirmed more recently in Hall v. Brookshire Bros., Ltd., 02-2404 (La.6/27/03), 848 So.2d 559.

The present appeal involves a summary judgment. That procedure is set forth in La. C.C.P. art. 966(B)(2), which provides, in pertinent part, that:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” (emphasis added)

Section (F)(2) of that article also provides that “[o]nly evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.” La. C.C.P. article 967 further provides that affidavits of |5experts must set forth their opinions based on facts which would be admissible under the Louisiana Code of Evidence.

Mr. Pitre focuses his argument on the contention that reasonable minds could not differ in concluding that the wrongful death of a young wife with two small children is clearly worth more than $500,000. However, before addressing the value of a particular injury, the burden is on Mr. Pitre to establish by competent evidence that the particular injury (in this case, Mrs. Pitre’s death), was caused by the admitted negligence of Dr. Marino. While Dr. Marino’s settlement with Mr. Pitre establishes that he was negligent, and that his negligence caused some injury to Mrs. Pitre up to the value of $100,000, the settlement, standing alone, does not establish that the particular injury that he caused was her death. In the absence of competent evidence to establish a causal link between Dr. Marino’s admitted negligence and Mrs. Pitre’s death, the value of Mrs. Pitre’s death is immaterial.

To be entitled to summary judgment, Mr. Pitre therefore had to show by way of competent evidence submitted for purposes of the summary judgment, that there was no genuine question that the malpractice admitted to by Dr. Marino caused an injury to Mrs. Pitre, whether it be her death or some other injury, that is valued in excess of $100,000. Mr. Pitre faded to introduce any evidence to establish this causal link. The only assertion bearing on this point in the motion for summary judgment is an unsupported statement by Mr. Pitre’s attorney, in a document styled “Statement of Facts which Are Not Genuinely in Dispute — Uncontested Facts,” that “Board Certified OBGYN physician, Dr. Michael Cardwell testified via deposition in this case. He opined that Dr. Marino’s negligence caused Mrs. Pitre’s death.” For reasons not of record, Mr. Pitre did not offer that deposition testimony to the court in conjunction with the motion, and therefore that alleged opinion could not be considered by the court pursuant to La. C.C.P. art. 966(F)(2). ^Because there was no other evidence to establish that the admitted malpractice was the cause of Mrs. Pi-tre’s death, or was otherwise the cause of any damages in excess of $100,000, as required by Graham, the motion for summary judgment was improperly granted.

CONCLUSION

For the foregoing reasons, the summary judgment in favor of Curtis Pitre, et al, and against the Louisiana Patient Compensation Fund and its Oversight Board, is hereby vacated. The matter is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: JAMES F. McKAY III, Chief Judge.

text:
    Michael BUSH v. BUD’S BOAT RENTAL, LLC and M/V DIXIE GEM.
    No. 2013-CA-0989.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2014.

      Stephen O’Brien Scandurro, Timothy David Scandurro, Scandurro & Layrisson, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Francis Joseph Lobrano, William Allen Schafer, Law Office of Francis J. Lobrano, LLC, Belle Chasse, LA, for Defendant/Ap-pellee, Bud’s Boat Rental, L.L.C.
    Patrick J. McShane, Lara N. Dicristina, R. Patrick Ray, Frilot LLC, New Orleans, LA, for Defendants/Appellees, The American Steamship Owners Mutual Protection & Indemnity Association, Inc.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY III, Chief Judge.

liln this Hurricane Katrina property damage case, the plaintiff, Michael Bush, appeals the trial court’s granting of summary judgment in favor of the defendants, Bud’s Boat Rental, L.L.C. and The American Steamship Owners Mutual Protection <& Indemnity Association, Inc. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On August 29, 2005, in anticipation of Hurricane Katrina, the M/V DIXIE GEM, a pleasure yacht more than sixty feet in length, was moored in the middle of Venice Marina in Plaquemines Parish. During the storm, the water at Venice rose quickly. This caused the M/V DIXIE GEM to drift and drag around its anchor at the end of a long chain. Thereupon, the chain looped over the deck of a stationary houseboat elevated on large concrete pilings. As a result, the houseboat suffered extensive damage.

On July 21, 2006, the houseboat’s owner, Michael Bush, filed suit against Bud’s Boat Rental, L.L.C., the owner of the M/V DIXIE GEM. In response, Bud’s Boat Rental moved for summary judgment, urging an affirmative “Act of God” | ¡.defense. On September 6, 2007, the trial court continued the motion without date. On March 25, 2010, the plaintiff amended his petition to add Bud’s Boat Rental’s insurer, The American Steamship Mutual Protection & Indemnity Association, Inc., as an additional defendant.

On February 22, 2013, the defendants reset the summary judgment motion for hearing. In support of their motion for summary judgment, the defendants submitted the affidavits of Gary Sercovich, the owner of Bud’s Boat Rental, and Robert Spears, a marine surveyor. In opposition to the motion for summary judgment, the plaintiff presented the affidavits of Captain James “Gene” Williams and Perry Beebe, a marine surveyor. Capt. Williams was a tugboat captain who stayed aboard a tugboat moored at the Venice Marina during Hurricane Katrina and an eyewitness to the events giving rise to this case. The motion came before the trial court for hearing on April 1, 2013. That same day, the trial court granted summary judgment in favor of the defendants. It is from this judgment that Mr. Bush now appeals. DISCUSSION

On appeal, Mr. Bush raises the following specifications of error: 1) summary judgment should not have been granted in light of the material facts relating to the defendants’ “Act of God” affirmative defense; and 2) the effects of Hurricane Katrina do not warrant the application of the “Act of God” defense on summary judgment when the underlying facts implicate human error or negligence as a cause or contributing cause to the plaintiff/appellant’s loss.

|3In essence, the only issue before this Court is whether summary judgment was properly granted. Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480, p. 3 (La.4/11/94), 634 So.2d 1180, 1183. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted. Lomax v. Ernest Morial Convention Center, 2007-0092, p. 3 (La. App. 4 Cir. 7/11/07), 963 So.2d 463, 465.

In the instant case, the defendants argue an affirmative “Act of God/force majeure” defense because of Hurricane Katrina. This defense, however, is not absolute. The defense does not apply if human fault is involved in causing the loss. Saden v. Kirby, 94-0854, p. 8 (La.9/5/95), 660 So.2d 423, 428. It has been l4held that a party may be held liable for damages that would not have occurred, but for his own conduct or omission, when combined or concurrent with a “force majeure” or “Act of God.” Terre Aux Boeufs Land Co., Inc. v. J.R. Gray Barge Co., 2000-2754 (La.App. 4 Cir. 11/14/01), 803 So.2d 86.

As Hurricane Katrina threatened landfall, Bud’s Boat Rental moved many of its boats out of the Venice Marina area to a safe harbor upriver. However, as to the M/V DIXIE GEM, Bud’s decided to moor it in the middle of the marina, in the most open area of the harbor to allow the vessel to pivot on its anchor during the storm. In its motion for summary judgment, Bud’s contends that this was reasonable and that no precautions could have prevented the harm and devastation caused by Hurricane Katrina.

In opposition to the defendants’ motion for summary judgment, the plaintiff introduced the affidavit of Capt. Williams, an eyewitness to the chain of events giving rise to this lawsuit. According to Capt. Williams’s affidavit, the M/V DIXIE GEM appeared to be moored with a Danforth anchor in the 40 pound class. However, as the waters at Venice rose, the vessel floated free and snagged Mr. Bush’s house boat with its anchor’s chain. According to Capt. Williams, this type of anchor consists of two triangular prongs on a pivoting frame. The vessel is held in place by pulling against the anchor, which tension drives the anchor’s two prongs into the water bottom in the general direction of the vessel. To remove a Danforth anchor from its fixed location on the water bottom, a vessel normally pulls the anchor in the opposite direction. The plaintiffs other affiant, certified [ .¡marine surveyor Perry Beebe, opined that this type of anchor should not be used where a vessel may pivot because the anchor will release as the vessel pivots around; he opined that the best course of action would have been to move the vessel out of the Venice Marina, but in the alternative no fewer than three anchors should have been used to moor a vessel the size of the M/V DIXIE GEM.

Summary judgment was not appropriate in this case. Mr. Bush was able to show that genuine issues of material fact existed as to whether the M/V DIXIE GEM was properly moored or should have been moved upriver.

CONCLUSION

For the above and foregoing reasons, the trial court’s judgment granting summary judgment in favor of the defendants is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The eye of the storm passed approximately twenty miles north of where the vessel was moored.


author: PAUL A. BONIN, Judge.

text:
    Jill E. Brown, Wife of/and Claude T. BROWN. v. ANPAC LOUISIANA INSURANCE COMPANY.
    No. 2013-CA-1375.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2014.

      Richard H. Barker, IV, New Orleans, LA, for Plaintiffs/Appellees-Jill E. Brown, Wife Of/And Claude T. Brown.
    Robert C. Lehman, Mandeville, LA, In-tervenor/Appellant In Proper Person-Robert C. Lehman, APLC.
    Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO.
   PAUL A. BONIN, Judge.

| following our reversal of an award in its favor because it failed to file an intervention, Robert C. Lehman, A Professional Law Corporation, filed an intervention in order to collect fees owed to it by former clients, Jill and Claude Brown, in connection with their suit for insurance proceeds against ANPAC Louisiana Insurance Company. After the Browns discharged Lehman, and without engaging a substitute attorney, they settled their claim with the insurer for $41,000.

The portion of the settlement which represented the disputed fee was deposited into Lehman’s IOLTA client trust account; the balance was delivered to the Browns. The insurer was dismissed. After issue was joined between Lehman and the Browns, a bench trial was conducted. Lehman was awarded $10,000 with judicial interest from the date of the insurer’s payment. Lehman appeals the amount of the award; the Browns neither appealed nor answered Lehman’s appeal.

Lehman assigns only one error: “The trial court was in error in not awarding attorney fees in the amount as stated in the employment contract for legal services.” It argues that it was entitled to a fee equal to thirty percent of the 12settlement amount because of a contingency fee agreement between Lehman and the Browns. Lehman argues that the agreement is the law between the parties and that the trial judge was without legal authority to deviate from its provisions. We disagree and explain below why we affirm the judgment.

I

Ordinarily contracts have the effect of law for the parties. See La. Civil Code art. 1983. But contracts for legal representation, and especially contingency fee contracts, are subject to judicial oversight. See Saucier v. Hayes Dairy Products, Inc., 873 So.2d 102, 118 (La.1979) (on rehearing); see also O’Rourke v. Cairns, 95-3054, p. 4 (La.11/25/96), 683 So.2d 697, 700. This judicial oversight arises from the judiciary’s constitutional duty to enforce the Rules of Professional Conduct adopted and promulgated by the Supreme Court. Saucier, 373 So.2d at 114. The two Rules of Professional Conduct pertinent to this matter, Saucier instructs, are the prohibition that a lawyer may not make an agreement to charge or collect an excessive fee (Rule 1.5(a)) and the representation of the client is terminated when the lawyer is discharged (Rule 1.16(a)(3)). Saucier, 373 So.2d at 116.

The trial judge found as a fact that the Browns discharged Mr. Lehman without cause. But simply because he was discharged without cause does not entitle Lehman to the entire amount of the contingent fee provided by contract because Mr. Lehman did not successfully perform his obligation to reduce the Browns’ claim to damages. Saucier, 373 So.2d at 117. And to find otherwise would strip the client’s absolute right to discharge his attorney of its effect if it were conditioned upon his payment of the full amount specified in the contract. Saucier, 373 So.2d at 116.

_k.II

On the eve of prescription, Mr. Brown approached attorney Robert Lehman about filing a lawsuit against his insurer for losses sustained in the aftermath of Hurricane Katrina. Mr. Lehman prepared and filed a lawsuit and, along with a contingency fee contract, forwarded a copy to Mr. Brown. Not receiving a signed copy from Mr. Brown, Mr. Lehman inquired only once. He claims to have never received the signed copy of the contract. Mr. Brown claims to have signed and returned the copy after amending it to provide that no legal fee would be charged on the first $7,000 recovered because such an amount had already been offered to him by the insurer. But Mr. Brown could not produce his copy of the contract as amended. The contract provided for a contingency fee of thirty percent of the amount recovered in settlement.

During the years that the lawsuit was pending, Mr. Brown left the area to obtain employment and communications between him and Mr. Lehman became difficult. The insurer’s attorney was seeking discovery, but Mr. Lehman had difficulty in obtaining any cooperation from Mr. Brown. Eventually, after a series of setting, postponing, and re-setting motions to compel discovery, as well as unforeseen need to reschedule inspections, and Mr. Lehman’s unsuccessful efforts to either settle the case or further delay a hearing on the motion to compel, Mr. Lehman wrote Mr. Brown once more asking for information to answer outstanding discovery requests. In frustration Mr. Lehman stated “give me a break,” to which Mr. Brown responded that he was giving Mr. Lehman a break by terminating the representation.

Not long after, Mr. Brown personally contacted the insurer’s attorney and the $41,000 settlement was agreed upon without the necessity of Mr. Brown’s ^answering the outstanding discovery. Mr. Brown later testified that he discharged Mr. Lehman because he would not simply settle the case. The highest settlement offer obtained prior to discharge was $20,000.

Ill

The trial judge considered Mr. Lehman’s testimony that he worked about forty hours on the case and that his hourly rate was $275. The trial judge awarded more than that amount but less than the thirty percent contingency.

The trial judge, after hearing evidence about the contingency fee contract and the attorney-client dealings, demands and counter-demands, determined that a fee of $10,000 was “not unreasonable” and thus, for our purposes, a not excessive fee. We would review the determination of the award under an abuse-of-discretion standard. See Verges v. Dimension Development Co., Inc., 08-1836, p. 7 (La.App. 4 Cir. 2/10/10), 32 So.3d 310, 314. But the Browns, as we earlier stated, have not appealed the judgment or answered the appeal arguing that the amount awarded as an attorney fee is excessive. See La. C.C.P. arts. 2121 and 2133 A. And Lehman, for its part, has not argued that the trial judge abused her discretion in the award. Thus we need make no further inquiry into the amount of the award of fees.

DECREE

We affirm the judgment on the intervention in favor of Robert C. Lehman, A Professional Law Corporation and against, Jill E. Brown and Claude T. Brown. All costs of this appeal are taxed to Lehman. See La. C.C.P. art. 2164.

AFFIRMED.

      . See Brown v. ANPAC Louisiana Insurance Company, 11-1576 (La.App. 4 Cir. 5/30/12), 95 So.3d 1165.

      . Lehman was also awarded all of its costs, with interest from the date of the judgment.


author: TERRI F. LOVE, Judge.

text:
    HUMANE SOCIETY OF NEW ORLEANS v. Mitchell J. LANDRIEU, In his Capacity as the Mayor of the City of New Orleans.
    No. 2013-CA-1059.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2014.

      Andrew L. Kramer, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Adam J. Swensek, Assistant City Attorney, Mary Katherine Kaufman, Assistant City Attorney, Sharonda R. Williams, City Attorney, New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET.
   TERRI F. LOVE, Judge.

[,The Humane Society of New Orleans (“Humane Society”) appeals the trial court’s denial of its writ of mandamus seeking an order compelling the City of New Orleans, through its Mayor, Mitchell J. Landrieu (“the City”) to appoint and commission individuals nominated by the Humane Society, as special police officers for the City of New Orleans pursuant to La. R.S. 8:2391. The trial court denied the Humane Society’s writ of mandamus concluding that the City’s Home Rule Charter trumped La. R.S. 8:2391. We find the Humane Society’s writ of mandamus an improper procedural mechanism, as mandamus is not available to compel performance that requires the exercise of discretion. Additionally, we find to compel the City to fully commission individuals appointed by the Humane Society as special police officers is an action not clearly provided by La. R.S. 3:2391. Therefore, we affirm the trial court’s denial of the Humane Society’s writ of mandamus.

19FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In January 2011, the Humane Society sent a letter to the City, through his Deputy Mayor of Public Safety, J.W. Sneed (“Deputy Mayor Sneed”), identifying three individuals, pursuant to La. R.S. 3:2391, it nominated for appointment and commission as special police officers for the prevention of cruelty to animals for the City of New Orleans. In March 2011, Deputy Mayor Sneed responded to the Humane Society’s letter, denying its request to issue commissions to the Humane Society. Deputy Mayor Sneed noted in his March 2011 letter:

... per the Home Rule Charter which governs the City of New Orleans, the New Orleans Police Department Superintendent has the authority to deputize persons not members of the police force. Since the City of New Orleans has elected to contract the services of the Louisiana Society for the Prevention of Cruelty to Animals for all requests related to animal control activities, they will receive special commissions at the discretion of the Superintendent. Therefore, it is deemed that it is not in the best interest of the City to also issue The Humane Society commissions since they will not be tasked with this role.

In March 2013, the Humane Society filed a petition for writ of mandamus against the City seeking an order compelling the City to appoint and commission Larry Maxwell, Bobby Casse, Jeffery Dor-son, and/or any other individuals identified by the Humane Society, as special police officers for the City of New Orleans. Subsequently, the trial court issued an alternative writ of mandamus, ordering the City to comply with the statute or appear for a hearing on a rule to show cause. The City then filed a peremptory exception of no cause of action and answer claiming mandamus is not available to compel action that requires the exercise of discretion; the lijCity as a Home Rule Charter entity is protected from unwarranted interference from the State in its internal affairs; and the New Orleans Superintendent of Police is empowered by the Home Rule Charter to deputize special police officers.

The parties did not contest the factual allegations in the petition for writ of mandamus and therefore no testimony was presented. The trial court accepted the Humane Society’s three exhibits including its certified record from the Louisiana Secretary of State, the Humane Society’s January 2011 request letter, and the City’s March 2011 response letter. At the conclusion of the hearing, the trial court denied the Humane Society’s writ of mandamus finding “the Home Rule Charter trumps state law.” This appeal follows.

STANDARD OF REVIEW

Questions of law are reviewed de novo. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-0582, p. 9 (La.11/29/06), 948 So.2d 1037, 1045 (quoting Louisiana Mun. Ass’n v. State, 04-0227 (La.1/19/05)), 893 So.2d 809. Additionally, this Court stated in A.M.E. Disaster Recovery Servs., Inc. v. City of New Orleans, 10-1755, p. 8 (La.App. 4 Cir. 8/24/11), 72 So.3d 454, 459:

“ ‘A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law [...]’ La. C.C.P. art. 3863. A writ of mandamus is an extraordinary remedy, to be applied where ordinary means fail to afford adequate relief.’ Hoag v. State, 040857, p. 6 (La.12/01/04), 889 So.2d 1019,1023. The remedy ‘must be used sparingly ... to compel action that is clearly provided by law.’ Hamp’s Const., L.L.C. v. Hous. Auth. of New Orleans, 10-0816, pp. 3-4 (La.App. 4 Cir. 12/01/10), 52 So.3d 970, 973, quoting Allen v. St. Tammany Parish Police Jury, 96-0938, p. 4 (La.App. 1 Cir. 2/14/97), 690 So.2d 150, 153. ‘Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised.’ Hamp’s, 100816, p. 4, 52 So.3d at 973. ‘The remedy is not available to command the performance of an act that contains any element of discretion, however slight.’ Id.”

\ MANDAMUS

The Humane Society avers that the trial court erred when it found that the City of New Orleans’ Home Rule Charter trumps La. R.S. 3:2391. This Court first addresses the writ of mandamus filed by the Humane Society. Mandamus is a remedy that is to be used sparingly to compel action that is clearly provided by law. Hamp’s, supra, 10-0816, p. 3, 52 So.3d 970, 973. Moreover, it is well-settled that mandamus is not available to compel performance that requires the exercise of discretion, “however slight.” Id., 10-0816, p. 4, 52 So.3d at 973.

The Humane Society claims that La. R.S. 3:2391 is clear and unambiguous and performance is clearly provided by the law.

La. R.S. 3:2391 states:

Whenever, in any incorporated city or town or in any parish, a corporation for the prevention of cruelty to animals shall be organized, the mayor of the city or town and the police jury of the parish, respectively, as the case may be, shall appoint and commission as special police officers such agents as the corporation for the prevention of cruelty to animals may nominate; and agents being so commissioned shall have the usual power of policemen and peace officers. No city, town, or parish shall be liable hereunder for any compensation to the special officers, and the police force of all incorporated cities and towns in the state shall aid any such corporation, its members or agents, in the enforcement in its respective locality of all laws enacted for the protection of animals.

In support, the Humane Society underscores the statutory language which states that the mayor or police jury shall appoint and commission persons nominated by the corporation for the prevention of cruelty to animals as special police officers. Further, the Humane Society contends the statute does not set any limitations or conditions on this duty, and therefore is mandatory,

| .^Although the Humane Society is correct in that the language of La. R.S. 3:2391 mandates the appointment and commission of special police officers, we disagree with the contention that La. R.S. 3:2391 clearly entitles the Humane Society such appointment. We find the City’s performance in compliance with the statute requires the exercise of discretion, namely determining who may be appointed and commissioned as special police officers.

First, the Humane Society asks this Court to find mandamus proper because pursuant to the statutory language, as a corporation organized for the purpose of the prevention of cruelty to animals, it is entitled to appointment. Under the Humane Society’s interpretation of La. R.S. 3:2391, however, any corporation organized for the prevention of cruelty to animals may seek the appointment and commission of special police officers. This interpretation of the statute would allow unregulated private entities to unilaterally designate any number of special police officers for commission without regard for the city’s needs or consideration of the necessary qualifications and training of those appointed. Despite the seemingly unambiguous language of La. R.S. 3:2391, in order for the City to comply with La. R.S. 3:2391, the City must exercise some level of discretion in its determination of which corporations and individuals are entitled to appointment as special police officers. Accordingly, La. R.S. 3:2391 does not establish a ministerial duty and mandamus is not available to compel performance. Therefore, we find the Humane Society’s writ of mandamus improper procedurally to compel the City’s compliance with La. R.S. 3:2391.

In light of this Court’s finding that mandamus is not available because to compel the City’s performance requires an element of discretion, we pretermit [(.discussion of whether the City of New Orleans’ Home Rule Charter trumps La. R.S. 3:2391.

DECREE

For the foregoing reasons, we find mandamus an improper judicial mechanism to compel the commission of individuals appointed by the Humane Society as special police officers. Therefore, we affirm the trial court’s denial of the Humane Society’s writ of mandamus.

AFFIRMED.

BELSOME, J., Concurs in the Result.


author: MAX N. TOBIAS, JR., Judge.

text:
    Regina MELERINE v. Darren M. O’CONNOR, Sr.
    No. 2013-CA-1073.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2014.

      Leonard L. Levenson, Christian W. Helmke, Donna R. Barrios, Weigand & Levenson, New Orleans, LA, for Plaintiff/Appellant.
    Keith L. Magness, Law Office of Keith L. Magness, LLC, Gretna, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge SANDRA CABRINA JENKINS).
   MAX N. TOBIAS, JR., Judge.

liThe plaintiff, Regina Melerine (“Regina”), appeals from an adverse judgment rendered in favor of defendant, Darren O’Connor (“Darren”), denying her claim for tortious conversion. For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL BACKGROUND

Regina and Darren cohabitated for a period of eight to twelve years in a residence Darren owned located at 2816 Lloyds Avenue in Chalmette. While Darren claims to have asked her to move out of the residence, it is undisputed that the parties were residing together at the Lloyds Avenue address on 29 August 2005, the date Hurricane Katrina devastated the area. During their cohabitation, certain movable property belonging to Regina was placed in Darren’s residence, which property was subsequently destroyed during the flooding that occurred in the aftermath of the hurricane.

At the time of Hurricane Katrina, Darren’s residence and its contents were insured pursuant to a flood policy issued to him by Fidelity National Insurance Company (“Fidelity National”). Following the hurricane, Darren filed a flood ^damage claim with Fidelity National seeking payment for the losses associated with the damage sustained to both his home and its contents. Regarding his contents claim, it is undisputed that the list of damaged property submitted to Fidelity National, which was initially prepared by Regina, identified not only items owned by Darren, but also included personal property owned by Regina that was located in the insured residence at the time it flooded. We note that no presumption exists that an insured who submits a claim is being dishonest in its preparation. The total flood loss claimed by Darren on the Fidelity National personal property adjustment was $82,180.00. On 22 November 2005, Fidelity paid to Darren the policy limits of $50,000.00 for the contents portion of his property damage claim.

Following receipt of Fidelity National’s payment, Regina made demand upon Darren to pay to her that portion of the insurance proceeds relating to the loss of her personal property, or $29,375.00. When he refused to do so, Regina filed suit against him for conversion. Specifically, although Regina does not contend that Darren is responsible to her for the loss of her movables as an insurer, she does claim that Darren, in effect, asserted ownership over (or converted) her personal property when he used the value of the destroyed movables she owned to increase the total value of his contents claim for the loss of his own movables that was submitted to Fidelity National, and which values were relied upon by Fidelity National in computing its loss calculations.

|sRegina’s conversion claim proceeded to trial on 19 September 2012. The trial court took the matter under advisement and, thereafter, on 19 November 2012, issued judgment with written reasons denying Regina’s claim for conversion. Regina timely perfected the instant devolutive appeal.

DISCUSSION

An appellate court may not overturn a judgment of the trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Stobart v. State, Dept. of Transp. and Development, 617 So.2d 880, 882, n. 2 (La. 1993). Where a conflict in the testimony exists, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a trial court’s factual conclusions, an appellate court must satisfy a two-step process based upon the record as a whole. It must conclude that (1) no reasonable factual basis exists for the trial court’s finding, and that (2) the finding of fact is clearly wrong. See Johnson v. Morehouse General Hospital, 10-0837, 10-0488, p. 12 (La.5/10/11), 63 So.3d 87, 96. The issue to be resolved by a reviewing court is whether the trier of fact’s conclusion is reasonable. Stobart, 617 So.2d at 882. Thus, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding is clearly wrong. Id. Additionally, the court of appeal may not reverse those findings, even though convinced that, had it been |4sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883.

On questions of law, the manifest error rule does not apply and the appellate court gives no special weight to the findings of the district court, but exercises its constitutional duty to review questions of law and renders judgment on the record. See Cannizzarro ex rel. State v. American Bankers Ins. Co., 12-1455, 12-1456, p. B (La.App. 4 Cir. 7/10/13), 120 So.3d 853, 856. In such cases, appellate review of questions of law is simply to discern whether the trial court was legally correct or legally incorrect. Winston v. Millaud, 05-0338, p. 5 (La.App. 4 Cir. 4/12/06), 930 So.2d 144, 150.

The sole issue presented in the case sub judice is whether the trial court was manifestly erroneous in dismissing Regina’s conversion claim and failing to award her the full value of her destroyed and/or damaged personal property ($29,375.00), when the value of this property was included by Fidelity National in computing its loss adjustment of Darren’s flood claim. Alternatively, Regina seeks recovery of that portion of the insurance proceeds Darren received that relates to the value of her damaged personal property, which was included in the claim submitted to Fidelity National (35.75% of $82,180.00, or $17,875.00). In denying Regina’s claim for conversion, the trial court stated in its written reasons for judgment that “the Court is not aware of any support, nor has plaintiff provide [sic] any citation, for her position that she should receive a portion of the insurance payment under the facts presented herein.” For the following reasons, we agree with the trial court; Regina failed to prove her conversion claim against Darren. Accordingly, we affirm the trial court’s judgment dismissing Regina’s claim for conversion.

|Jn Louisiana, conversion is an intentional tort and consists of an act in derogation of the plaintiffs possessory rights. See Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So.2d 756, 760 (La.1985). To constitute a conversion, an intentional dispossession and/or exercise of dominion or control over the property of another in denial of or inconsistent with the owner’s rights must be established. See Kinchen v. Louie Dabdoub Sell Cars, Inc., 05-218, pp. 6-7 (La.App. 5 Cir. 10/6/05), 912 So.2d 715, 718. In Dual Drilling Co. v. Mills Equipment Investments, Inc., 98-0343, pp. 4-6 (La.12/1/98), 721 So.2d 853, 856-57, the Court addressed the concept of conversion, in pertinent part:

The Civil Code itself does not identify causes of action for “conversion.” However, causes of action for conversion have been inferred from the Codal articles providing that the right of ownership, possession, and enjoyment of movables [is] protected by actions for the recovery of the movables themselves, actions for restitution of their value, and actions for damages. La. Civ.Code arts. 511, 515, 521, 524, 526, and 2315. Consequently, the dispossessed owner of a corporeal movable may be accorded one of three actions to enforce his rights of ownership.
The first is the revendicatory action for the recovery of a movable transferred: (1) by the owner or legal possessor to a person in bad faith, (2) for less than fair value, or (3) when the movable was lost or stolen. A.N. YIANNOPOU-LOS, LOUISIANA CIVIL LAW TREATISE §§ 350-351, at 680-683 (2 nd ed. 1991 & Supp.1998). The second action arises under the law of delictual obligations and exists under the theory of unjust enrichment. YIANNOPOU-LOS, LOUISIANA CIVIL LAW TREATISE § 356, at 689-690.
The third action, ... is known as a delictual action. It is available to an owner dispossessed as a result of an offense or quasi-offense or, in other words, a “tort.” This action is grounded on the unlawful interference with the ownership or possession of a movable and is frequently termed an action for “conversion” in Louisiana. A | (¡conversion is committed with any of the following occurs: (1) possession is acquired in an unauthorized manner; (2) the chattel is removed from one place to another with the intent to exercise control over it; (3) possession of the chattel is transferred without authority; (4) possession is withheld from the owner or possessor; (5) the chattel is altered or destroyed; (6) the chattel is used improperly; or (7) ownership is asserted over the chattel. FRANK L. MA-RAIST & THOMAS C. GALLIGAN, LOUISIANA TORT LAW § 1-2, at 3 (1996 & Supp.1998); Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (La.1957); see also Louisiana State Bar Assoc. v. Hinrichs, 486 So.2d 116 (La. 1986). The conversion action is predicated on the fault of the defendant and directed to the recovery of the movable or, in the alternative, the plaintiff may demand compensation. (Footnotes in original text omitted.)

In the instant case, Regina claims that Darren “asserted ownership over [her] property” when he used it “to increase his contents recovery (because he never advised Fidelity [National] that he did not own [her] property even though it was included on the contents list he submitted to Fidelity [National]),” and that, in doing so, his tortious and unlawful actions constituted a conversion of her personal property into his own. A review of the record in this case, however, belies Regina’s contentions.

It is undisputed that the personal property Regina claims Darren converted to his own was completely damaged and/or destroyed in Hurricane Katrina prior to his ever having prepared or submitted a contents list claim to Fidelity National. Moreover, our review of the record in its entirety reveals that it contains no evidence establishing that Darren (1) obtained possession of Regina’s movables in an unauthorized manner, (2) removed Regina’s property from his home with the intent to exercise dominion or control over it, (3) transferred possession of Regina’s property to a third party without her authority, (4) withheld from Regina | ^possession of her personal property, (5) destroyed or altered her personal property, or (6) asserted ownership over Regina’s property so as to dispossess her of it or interfere with her right of ownership. Rather, the property at issue was completely destroyed.

Moreover, Regina readily admitted at trial that she personally prepared the initial contents list that included her personal property, which was submitted to Fidelity National. This fact alone discounts her accusation that Darren’s inclusion of her personal property was an intention to dispossess her of the ownership of her property. Cf., Aymond v. State, Dept. of Revenue and Taxation, 95-1663, pp. 4-5 (LaApp. 1 Cir. 4/4/96), 672 So.2d 273, 276 (“[O]ne who might otherwise be entitled to maintain an action for conversion of his goods may afford the alleged wrongdoer a complete defense to the action by waiving the right to treat the act as wrongful, or by ratification thereof. If the owner expressly or impliedly assents to or ratifies the taking, use, or disposition of his property, he cannot recover for conversion of the property. In other words, the right to sue in conversion may be defeated by any act or conduct which amounts to an estop-pel.”) (Citations omitted.)

In short, even if we were to determine that Darren’s actions amounted to a conversion — which, we do not — the fact that Regina personally prepared the contents loss statement that included her property leads us to conclude that she waived any right she may have had to treat his actions as a conversion of her property. As previously stated, in order to constitute a conversion, an intentional dispossession and/or exercise of dominion or control over the property of another in denial of or inconsistent with the owner’s rights must be established. In the instant case, the record on appeal does not support such a finding. Accordingly, the trial court was neither manifestly erroneous nor clearly wrong in its ^determination that, under the facts presented, Regina is not entitled to the recovery she seeks.

Our review of the record on appeal and the applicable law convinces us that the only way Regina would be entitled to recover any portion of the $50,000.00 in insurance proceeds that Darren received is if she proved she was an insured under the flood policy Fidelity National issued to Darren. Regina failed to do so. The mere fact that in her brief on appeal she repeatedly refers to herself as an insured under Darren’s flood policy does not make her one. Despite her contentions to the contrary, we disagree that it has been “proven and accepted” that Regina’s property was covered under the policy.

A court of appeal is a court of record, which must limit its review to evidence in the record before it. La. C.C.P. art. 2164; Board of Directors of Industrial Development Bd. of City of New Orleans v. All Taxpayers, Property Owners, Citizens of New Orleans, 03-0826, p. 4 (La. App. 4 Cir. 5/29/03), 848 So.2d 740, 744. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Id. While a copy of the Flood Declarations Policy page, introduced into evidence at trial without objection, is contained in the record, a copy of the Fidelity National flood policy itself is not. According to the Flood Declarations Policy page, Darren is the only named insured under the policy. This fact is substantiated by Darren’s trial testimony, which confirms his is the only named insured. Other than Regina’s unsubstantiated assertions to the contrary in her counsel’s arguments to the court, Darren’s testimony is uncontroverted.

The Flood Policy Declarations contained in the record indicates that the flood policy Fidelity National issued to Darren was a “dwelling” type Standard | nFlood Insurance Policy (“SFIP”). SFIP policies are issued under the auspices of the National Flood Insurance Program (“NFIP”), which was established by Congress under the National Flood Insurance Act of 1968. See 42 U.S.C. § 4001. “Flood insurance policies can be issued directly by [the Federal Emergency Management Agency] or through private insurers known as ‘Write Your Own’ companies [such as Fidelity National]. By statute, these companies are fiscal agents of the United States.” Gowland v. Aetna, 143 F.3d 951, 953 (5th Cir.1998); 42 U.S.C. § 4071. The terms and conditions of all federal flood insurance policies are fixed. See Gowland v. Aetna, 143 F.3d at 953. The provisions of a policy issued under a federal program must be strictly construed and enforced. Id. at 954. The specific terms of a SFIP dwelling policy, such as the one Fidelity National issued to Darren, were established by regulations promulgated by FEMA, and are found at Appendix A(l) to Part 61 of Title 44 of the Code of Federal Regulations.

Pursuant to La. C.E. art. 202, a court may take judicial notice of certain matters. Specifically, Article 202 provides, in pertinent part:

A. Mandatory. A court, whether requested to do so or not, shall take judicial notice of the laws of the United States, of every state, territory, and other jurisdiction of the United States, and of the ordinances enacted by any political subdivision within the court’s territorial jurisdiction w hen ever certified copies of the ordinances have been filed with the clerk of that court.
B. Other legal matters. (1) A court shall take judicial notice of the following if a party requests it and provides the court with the information needed by it to comply with the request, and may take judicial notice without request of a party of: (e) Rule and decisions of ... agencies of the United States ... or other jurisdiction of the United States which have been duly published and promulgated and which have the effect of |inlaw within their respective jurisdictions. (Emphasis supplied.)

We note that neither party requested that the court take judicial notice of the terms and conditions of the SFIP dwelling policy set forth in 44 C.F.R. pt. 61, app. A(l) or provided the court with the information it needed to comply with such a request. Accordingly, while La. C.E. art. 202 provides an avenue by which the trial court could have, in its discretion, taken judicial notice of the provisions of the SFIP issued to Darren, the trial court was not required to and did not do so in this case. Even if, however, this court were to consider it an abuse of discretion that the trial court failed to take judicial notice of the SFIP Fidelity National issued to Darren, Regina still does not prevail on her claim for conversion of the policy proceeds paid to Darren (i.e., that portion of the proceeds attributed to the value of the destroyed personal property belonging to her). The personal property coverage provided by a SFIP only applies to property owned by the named insured (i e., Darren), or the named insured’s “household family members.” As Darren and Regina both testified at trial that they were never married, the record is devoid of evidence establishing that Regina qualified as a “household family member” or that her personal property was otherwise covered under the policy.

Without a copy of the policy, and absent a stipulation by the parties or a factual or legal determination made by the court below that Regina is, in fact or by law, an insured or an additional insured under Fidelity National’s flood policy, we conclude that Regina failed to establish her status as an insured entitled to recover any portion of the policy proceeds paid to Darren.

According to our review of Fidelity National’s flood loss adjustment of Darren’s contents claim, and considering the various depreciation calculations |nmade by its adjuster, as noted by the trial court in its written reasons for judgment, it does appear that Darren received a greater sum from Fidelity National than he may have been entitled to without the inclusion of Regina’s property in the adjustment. We agree with the trial court, however, that to the extent Darren may have been unjustly enriched by the amount he received from Fidelity National, the right to recoup any overpayment inures to the benefit of the insurance company, not to Regina.

Under the facts presented in this case, and applying the law applicable to those facts, we do not find the trial court manifestly erred or was clearly wrong in its findings and/or legal determination that Regina failed to establish her entitlement to any portion of the insurance payment made to Darren.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment dismissing Regina’s claim against Darren for conversion.

AFFIRMED.

      . Regina claims they cohabitated for twelve years, while Darren contends they lived together for eight or nine.

      . While Regina introduced Fidelity National's response to a subpoena duces tecum into evidence pursuant to La. C.C.P. arts. 1450 A(3)(a)(witness was unavailable) and A(3)(b)(witness resides more than one hundred miles from the place of trial), which response contained a copy of Fidelity National’s claims file, including a copy of a Flood Policy Declarations page for the policy in effect from 3/07/2005 to 3/07/2006, Fidelity National’s file did not contain a copy of the actual flood policy that it issued to Darren. A copy of the flood policy was not otherwise introduced into evidence nor is the policy contained in the appellate record.

      . We note that no presumption exists that an insured who submits a claim is being dishonest in its preparation.

      . In its judgment, the trial court awarded $5,496.50 to Regina for other claims she asserted against Darren. An appeal as to those claims has not been lodged and, thus, that portion of the judgment awarding those amounts is now final and non-appealable.


author: MAX N. TOBIAS, JR., Judge. LOMBARD, J.,

text:
    Michael HAMMOND v. Ison RAHSAANA and XYZ Insurance Company.
    No. 2013-CA-1202.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2014.

      Darken M. Jacobs, Rene’ D. Lovelace, Al A. Sarrat, Jacobs, Sarrat, Lovelace & Harris, New Orleans, LA, for Plaintiff/Ap-pellee.
    Daarina H. Phillips, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET).
   MAX N. TOBIAS, JR., Judge.

Bln this personal injury case, the plaintiff/appellee, Michael Hammond, alleges that he was injured when a piece of the ceiling in the apartment he was renting from the defendant/appellant, Ison Rah-saana, fell on his head. After reviewing the record and applicable law, we affirm the judgment.

In June 2007, Mr. Hammond rented an apartment from Ms. Rahsaana; the parties had known each other for about twenty years. The apartment, Apartment D, was located in a four-plex at 2105 Columbus Street in New Orleans. The rent was $750.00 per month; Mr. Hammond told Ms. Rahsaana that the Federal Emergency Management Agency (“FEMA”) would be paying his rent, a fact not unusual in the aftermath of Hurricane Katrina in 2005. The evidence demonstrates, however, that Ms. Rahsaana received nothing from FEMA until January 2008, after Mr. Hammond had vacated the apartment.

[gMr. Hammond testified that, in July 2007, he reported to Ms. Rahsaana that sheetrock was falling from the living-room ceiling; no repairs were ever made. Mr. Hammond also specifically denied being in a car accident shortly before (5 October 2007) the incident in question.

Mr. Hammond testified that on 7 October 2007, at approximately 4:00 a.m., while he was praying in his living room, a two-foot square part of the ceiling fell on his head and neck. No pictures of the ceiling or fallen sheetrock were admitted into evidence. Mr. Hammond stated that he sought medical treatment the following day with his family doctor, Henry Evans, M.D., who sent him for a CT scan of his head. Medical records from Diagnostic Imaging, the facility that performed the CT scan, reported normal findings. Other than the order for a CT scan, no other medical records from Dr. Evans are in the record before us.

About one month later, Mr. Hammond’s attorney sent him to be examined by George A. Murphy, M.D.; he was examined on 12 November 2007. Dr. |sMurphy did not testify at trial, but his report was received in evidence. In his report to the referring attorney, he reported that Mr. Hammond had diminished extension and rotation to the left of the cervical spine with spasm present on the left of the base of^ his neck and shoulder. Dr. Murphy specifically noted that Mr. Hammond told him that he had been in a prior motor vehicle accident in October in which he injured only his lower back and was treated at Tulane Hospital; Mr. Hammond reported that the area was well at the time of the visit. Dr. Murphy diagnosed him with a contusion to the head and cervical strain as a result of the injury and ordered a MRI of his cervical spine. Dr. Murphy stated that Mr. Hammond would return for routine follow-up with his office. However, Mr. Hammond neither had the cervical MRI nor returned to see Dr. Murphy. Mr. Hammond testified that he suffered headaches and neck pain for about the next seven months.

Ms. Rahsaana testified that in late September 2007, Mr. Hammond first informed her that there was a small leak in the living room ceiling of the apartment. She had a contractor look at it; the contractor said that there was a small leak in the roof that would have caused discoloration in the ceiling. The record is unclear as to whether the leak was actually repaired at that time.

Ms. Rahsaana testified that about a week later, on 5 October 2007, she witnessed the plaintiffs involvement in a motor vehicle accident in front of her apartment building. He was driving up Columbus Street when he was hit from the passenger side; his car was pushed up into Ms. Rahsaana’s yard. She testified that |4the car was heavily damaged and stayed parked in her yard until she had it towed away. Mr. Hammond did not complain to her of any head or neck injuries as a result of the accident. The accident involving the ceiling occurred a day or two later. When she observed the ceiling after the accident, the “entire ceiling” had been pulled down.

Mr. Hammond subsequently sued Ms. Rahsaana and her insurance company for damages resulting from the fallen ceiling. Shortly before trial, on 13 February 2013, the following letter was sent to Mr. Hammond’s counsel by Dr. Murphy:

Mr. Michael Hammond was evaluated in my office November 12, 2007.
All of my findings on examination, the diagnosis of contusions of the head and cervical strain, the treatment rendered and my bill for $500 were all more probably than not related to Mr. Hammonds [sic] accident of October 7, 2007.

A bench trial was held on 4 March 2013, at which both parties testified; they were the only witnesses. Much of the evidence was hearsay to which neither party objected. The court rendered judgment in favor of the plaintiff the following day and awarded the amount of $6,000.00 in general damages, $1,416.50 in special damages, along with judicial interest and court costs. In its reasons for judgment, the trial court relied on the limited medical records that were admitted into the record in lieu of live testimony, noting that the parties stipulated to the authenticity and admissibility of the records and the amount of the medical expenses. The |Bcourt found that the evidence presented at trial established that on 7 October 2007, Mr. Hammond sustained a soft-tissue injury that took seven months to resolve. This timely appeal followed.

It is well-established law that we review the factual findings of the trial court for manifest error. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). The standard of review applicable to fact findings of the trial court has been clearly enunciated by our Supreme Court in Rabalais v. Nash, 06-0999, p. 4 (La.3/9/07), 952 So.2d 653, 657:

It is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong.... To reverse a fact-finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where the jury’s findings are reasonable, in light of the record reviewed in its entirety, the court of appeal may not reverse. Even where the court of appeal is convinced that it would have weighed the evidence differently to reach a different result, reversal of the trial court is improper unless the trial court’s ruling is manifestly erroneous, or clearly wrong.

Where two permissible views of the evidence exist, the fact-finder’s choice cannot be manifestly erroneous or clearly wrong. The appellate court “must be cautious not to re-weigh the evidence or to substitute its own factual findings” for those of the trial court. Eisenhardt v. Snook, 08-1287, p. 6 (La.3/17/09), 8 So.3d 541, 545. The issue to be resolved by a reviewing court is whether the factjñnder’s6 conclusion was reasonable. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).

In particular, the deference to a trial court’s ability to evaluate the credibility and make reasonable inferences of fact, to experience the immediacy of seeing and hearing witnesses in the course of their testimony, is a well-established precept of our law. See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978).

We are required to give the great deference to the trial court in this case, even though we would have adjudicated this case differently. The trial court found that Mr. Hammond established medical causation; in other words, he proved to the trial court’s satisfaction that the falling ceiling, rather than the car accident one or two days earlier, was the cause of his cervical strain. Although we, if the triers of fact hearing the evidence first hand, would give substantial weight to Mr. Hammond’s apparently inaccurate claim that he had not been in a car accident, the trial court apparently believed him in spite of the contradiction with Dr. Murphy’s notations that Mr. Hammond had acknowledged the accident to him. Further, Ms. Rahsaana witnessed the accident; the trial court apparently gave no weight to her testimony, which is within the trial court’s discretion. Obviously, the court gave no weight to Ms. Rahsaana’s testimony that the damage to the vehicle was on the passenger (right) side of the car, rendering it inoperable such that it had to be towed from her lawn. We have no medical records of Mr. Hammond’s treatment |7at Tulane, if in fact he sought medical treatment, and only his assurance to Dr. Murphy that his low-back injury was fully resolved just a month later. If those records had been part of the record on appeal, such might have called into question Dr. Murphy’s opinion. We have no medical records from Dr. Evans to support Mr. Hammond’s contention that all his injuries arose from the fallen ceiling, noting that the medical records could not have been destroyed in a hurricane that occurred two years before the events in question. We note Mr. Hammond never had the MRI ordered by Dr. Murphy or returned to Dr. Murphy for medical care in spite of his insistence that his injuries lasted about seven months.

Under Louisiana law, a plaintiff in a tort case must prove causation by a preponderance of the evidence. Lasha v. Olin Corp., 625 So.2d 1002,1005 (La.1993); Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759 (holding that a plaintiff in a personal injury suit has the burden of proving a causal relationship between the injury and the accident which caused the injury). Causation is a question of fact and is subject to the manifest error standard of review. Green v. K-Mart Corp., 03-2495, p. 3 (La.5/25/04), 874 So.2d 838, 841. Expert medical testimony is required when the conclusion regarding medical causation is one that is not within common knowledge. Chavers v. Travis, 04-0992, p. 10 (La.App. 4 Cir. 4/20/05), 902 So.2d 389, 395 (citing Hutchinson v. Shah, 94-0264, p. 3 (La.App. 1 Cir. 12/22/94), 648 So.2d 451, 452). Because of the close proximity of the two accidents, Mr. Hammond was required to present expert medical testimony to exclude the motor vehicle accident, if it happened, as a cause of all or part of his injures. This the trial court apparently found, was established by Dr. Murphy’s letter.

In light of the testimony and evidence in the record on appeal, we cannot say that the trial court was manifestly or clearly in error that it was more probable than not the. incident on 7 October 2007 was the sole cause of Mr. Hammond’s injuries. Although we would find if we were the initial fact-finders that it is just as probable that the automobile accident that occurred a day or two prior to the falling ceiling incident caused and/or contributed to Mr. Hammond’s injuries, the trial court found contrariwise. The evidence in the record can reasonably be read to preponderate ever so slightly in Mr. Hammond’s favor. As such, we find that Mr. Hammond has carried his burden of proof.

Based on the foregoing, we affirm the judgment in favor of Mr. Hammond.

AFFIRMED.

LOMBARD, J., Dissents with Reasons.

LEDET, J., Concurs in the Result.

LOMBARD, J.,

Dissents with Reasons.

hThe district court manifestly erred in determining that Mr. Hammond proved by a preponderance of evidence that his October 7, 2007 accident on Ms. Rahsaana’s property was the sole cause of his injuries. Mr. Hammond perjured himself at trial by attempting to conceal from the trial court that he was involved in a car accident just two days prior to the October 7, 2007 accident. Indeed, Mr. Hammond’s doctor, Dr. George A. Murphy, noted that he had been involved in a car accident, which Ms. Rahsaana witnessed. Thus, for the foregoing reasons, I respectfully dissent.

LEDET, J., Concurs in the Result.

      . The parties agree that a lease was signed; a copy of the lease is not a part of the appellate record. Such moots Ms. Rahsaana’s arguments that Mr. Hammond’s failure to pay rent is a defense to show that he sustained no injury from the falling ceiling. See La. C.C. art. 2317.1. However, an offset of unpaid rent could be applied to the amounts that the trial court awarded to Mr. Hammond; from the record, we cannot tell whether the trial court did or did not apply such an offset without discussing same in the reasons for judgment.

      . Under cross examination, Ms. Rahsaana was questioned about her contact with FEMA and the check from FEMA made out to her in the amount of $750.00. Initially, Mr. Hammond’s counsel objected to Ms. Rahsaana’s responses as hearsay. However, the trial court then asked several questions of Ms. Rahsaana, who testified further as to what she was told by FEMA. After this exchange, Mr. Hammond’s counsel failed to object to this additional hearsay, thereby waiving the objection. Consequently, we summarize that testimony as follows.

        When Mr. Hammond rented the apartment from Ms. Rahsaana, he told her that FEMA would be paying his rent under the FEMA Rental Assistance Program. Her other three units were also being rented under the same assistance program; in those cases, the rental payments from FEMA were being sent directly to Ms. Rahsaana because she had set up the accounts with FEMA. However, Mr. Hammond wanted to set up the account himself. Ms. Rahsaana allowed him to do so, trusting that he would give her the money he received from FEMA. At that time, Ms. Rahsaana was living in Oxford, Mississippi. Every time Ms. Rahsaana came to town, she asked him for the rental payments and he stated that the money was coming; she believed him because they were friends and he was a pastor. Eventually, FEMA contacted her because Mr. Hammond wanted to move his lease somewhere else and it was then that she learned that Mr. Hammond was indeed receiving funds through FEMA but had never paid her for the rent. Although Ms. Rahsaana filed a reconventional demand and presented her claim at trial for unpaid rent from June 2007 to February 2008, she did not herself appeal or answer the appeal to recover the monies. Therefore, that issue is not before us and cannot be considered.

      . Mr. Hammond stated that he is a pastor and, at the time of the accident, was the full-time pastor at the New Life Evangelistic Church.

      . Ms. Rahsaana’s insurance company was granted summary judgment dismissing it after demonstrating that it did not provide personal liability insurance covering the accident at issue.

      . This court is puzzled by the trial court’s statement that: "Dr. Evan’s records were destroyed during Hurricane Katrina, except for a copy of a prescription for a CT scan he ordered for the plaintiff. This test was performed on October 11, 2007 at Diagnostic Imaging.” [Emphasis supplied.] Hurricane Katrina occurred on 29 August 2005, more than two years before this accident occurred.

      . Evidently, Mr. Hammond informed Dr. Murphy of the car accident because it was specifically referenced by Dr. Murphy in his letter of 12 November 2007.

      . The parties stipulated to the authenticity and admissibility of the medical records introduced by the plaintiff. We are bound by law to review this case on the record before us.