author: HANS J. LILJEBERG, Judge.

text:
    LEMMON LAW FIRM, LLC v. The SCHOOL BOARD OF the PARISH OF ST. CHARLES.
    No. 13-CA-376.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Robert J. Ellis, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    States & Lavergne, Russell J. States, Jr., Attorney at Law, Lake Charles, Louisiana, for Defendant/Appellee.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| gPlaintiff, Lemmon Law Firm, L.L.C. (“Lemmon”), appeals the trial court judgment granting the exceptions of no cause of action and no right of action filed by the St. Charles Parish School Board (“the School Board”) and dismissing plaintiffs petition with prejudice. For the following reasons, we reverse the judgment as to both exceptions and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

On September 30, 2009, Lemmon filed suit against the School Board seeking to recover attorney fees resulting from its representation of the School Board in a civil proceeding filed in the United States District Court for the Eastern District of Louisiana, No. 04-2511, entitled School Board of St. Charles, et al. v. Shell Oil Company (“Shell litigation”). In its petition, Lemmon alleges that when it was retained by the School Board, through an authorized representative, it was agreed that Lemmon was to be paid “the maximum allowable hourly rate and receive the statutory attorney fee, if one was recovered, after credit was given for |sthe hourly payments received during the litigation.” Lemmon asserts that the federal court ultimately rendered a judgment in the Shell litigation, awarding $1,053,620.74 in taxes, interest, and penalties to the School Board, as well as an additional 10% in attorney fees, in accordance with the St. Charles School Board General Sales and Use Tax Ordinance (September 1, 1965) (as amended) § 9.03. Accordingly, Lem-mon claims that it is entitled to this statutory attorney fee, after credit is given for the hourly payments received during the litigation, as per its agreement with the School Board.

In the alternative, Lemmon asserts that it is entitled to past-due attorney fees resulting from the underpayment of the hourly rate from April 1, 2004 to January 31, 2007, in the amount of $26,951.25. Lemmon states that during the time it was employed by the School Board, the maximum hourly rate permitted by the Louisiana Department of Justice increased from $150.00 per hour to $175.00 per hour, but the School Board continued to pay Lem-mon $150.00 per hour. Lemmon asserts that it discussed this issue with the School Board in June of 2007 and the School Board agreed to pay the difference retroactive to January of 2007. However, Lem-mon claims that it was entitled to payment at the $175.00 per hour rate retroactive to April of 2004.

In response to Lemmon’s petition, on November 9, 2009, the School Board filed a “Peremptory Exception of No Cause/ Right of Action, Answer and Affirmative Defense.” In this pleading, the School Board claims that Lemmon has no cause of action against it for the statutory attorney fee awarded, because it is a claim to a contingency fee, which must be in writing pursuant to LSA-R.S. 37:218 and Rule 1.5(c) of the Louisiana Rules of Professional Conduct. It contends that Lemmon and the School Board did not have a written contract for legal services in |4the Shell litigation, so Lemmon has not stated a cause of action against the School Board. The School Board further argues that Lemmon does not have a right of action against it for attorney fees, because the total of the payments already made to Lemmon by the School Board for its representation in the Shell litigation exceeds the amount of the statutory attorney fee awarded.

On September 24, 2012, Lemmon filed a “First Supplemental and Amending Petition,” asserting that the services provided by Lemmon for the School Board “constitute an open account pursuant to LSA-R.S. 9:2781 et seq.”

The peremptory exceptions of no cause of action and no right of action came for hearing before the trial judge on December 10, 2012. At the conclusion of the hearing, the trial judge took the matter under advisement. On January 16, 2013, the trial judge rendered a judgment granting the exceptions of no cause of action and no right of action, and dismissing Lemmon’s petition with prejudice. Lem-mon appeals.

LAW AND DISCUSSION

On appeal, Lemmon first argues that the trial court erred by granting the School Board’s exception of no cause of action. It contends that neither LSA-R.S. 37:218 nor Rule 1.5(c) of the Louisiana Rules of Professional Conduct applies in this case, because the statutory attorney fee awarded in the Shell litigation was not a contingency fee and thus, the agreement between Lemmon and the School Board for Lemmon to recover this fee was not required to be in writing. Lemmon further notes that the School Board’s exception of no cause of action claimed only that Lemmon did not state a cause of action for recovery of the statutory attorney fee. It did not assert that Lemmon failed to state a cause of action for attorney fees on open account or for the outstanding attorney fees due to the underpayment of the hourly rate.

| sThe School Board responds that Lem-mon has not stated a cause of action for the statutory attorney fee awarded, because this fee was not guaranteed and was contingent on the outcome of the Shell litigation. Thus, the School Board maintains that the statutory attorney fee was a contingency fee and that contingency fee agreements must be in writing to be enforceable.

In his reasons for judgment, the trial judge found that Lemmon did not state a cause of action for attorney fees, because it failed to allege the critical elements of its claim that either the parties had a written contingency fee agreement that entitles Lemmon to any statutory attorney fee or that Lemmon is seeking to recover fees based on quantum meruit.

An exception of no cause of action tests the legal sufficiency of the petition and is triable on the face of the petition. Fink v. Bryant, 01-987, p. 3 (La.11/28/01), 801 So.2d 346, 348-349; Cleco Corp. v. Johnson, 01-175, p. 3 (La.9/18/01), 795 So.2d 302, 304. An appellate court conducts a de novo review of a trial court’s judgment sustaining a peremptory exception of no cause of action, because the objection raises a question of law. Donnaud’s Inc. v. Gulf Coast Bank and Trust Co., 03-427, p. 5 (La.App. 5 Cir. 9/16/03), 858 So.2d 4, 7, writ denied, 03-2862 (La.1/9/04), 862 So.2d 985. On review, the court asks whether, in the light most favorable to the plaintiff and with every doubt resolved in the plaintiffs favor, the petition states any valid cause of action. Ramey v. DeCaire, 03-1299, p. 8 (La.3/19/04), 869 So.2d 114, 119; Taylor v. Leger Construction, L.L.C., 10-749, p. 3 (La.App. 3 Cir. 12/8/10), 52 So.3d 1098, 1101.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Industrial Companies, Inc. v. Durbin, 02-665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213; Cleco Corp., 01-175 at 3, 795 So.2d at 304. The standard for granting an exception of no cause of action is not the likelihood that the plaintiff will prevail at trial; rather, it is whether, on the face of the petition, accepting all allegations as true, the petition states a valid cause of action for relief. Doe v. Smith, 05-653, p. 2 (La.App. 4 Cir. 7/13/05), 913 So.2d 140, 141.

The general rule is that where the petition states a cause of action as to any ground or portion of a demand, an exception of no cause of action should be denied. Sevarg Co., Inc. v. Energy Drilling Co., 591 So.2d 1278, 1281 (La.App. 3 Cir.1991), writ denied, 595 So.2d 662 (La.1992). The only recognized exception to such rule is when separate and distinct causes of action are included in one petition. Id. See also Lybrand v. Newman, Drolla, Mathis, Brady, & Wakefield, 95-9 (La.App. 5 Cir. 10/31/95), 663 So.2d 850. A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Industrial, 02-665 at 6, 837 So.2d at 1213; Fink, 01-987 at 4, 801 So.2d at 349. The language of the petition must be accorded every reasonable interpretation in favor of maintaining its sufficiency and granting the plaintiff the opportunity to present evidence at trial. Industrial, 02-665 at 7, 837 So.2d at 1213.

In the present case, the allegations set forth by Lemmon in its petitions are sufficient to support a cause of action against the School Board for attorney fees. In its original petition, Lemmon contends that it was hired to represent the School Board in the Shell litigation filed in federal court. Lemmon further asserts that it had an agreement with the School Board to be paid the maximum allowable hourly rate and to receive the statutory attorney fee, if one was recovered, after credit was given for payments made during the litigation. Lemmon contends that a statutory attorney fee of $105,362.07 was, in fact, awarded and that it is entitled to this fee, ^subject to a credit for payments made during the litigation. Lemmon further asserts that the maximum hourly rate increased from $150.00 to $175.00, but the School Board continued to pay Lemmon at the $150.00 per hour rate. Although the School Board did acknowledge the discrepancy and paid the difference in these hourly fees retroactive to January of 2007, Lemmon claims it should have been paid retroactive to April of 2004, resulting in a deficiency of $26,951.25. Finally, in its First Supplemental and Amending Petition, Lemmon asserts that the services provided by Lemmon were on open account, pursuant to LSA-R.S. 9:2781 et seq.

In its exception of no cause of action, the School Board does not contend that Lem-mon has no cause of action for the underpayment of attorney fees from April of 2004 to January of 2007. In fact, at the hearing on the exceptions, counsel for the School Board stated that the exception had “nothing to do with Mr. Lemmon’s claim to an additional twenty-five dollars an hour.” He added that the issue before the court was whether Lemmon was entitled to the statutory attorney fee, which was a contingency fee. Moreover, at the hearing, the trial judge stated that it was “not before me today whether or not it is an open account.” Nevertheless, when the trial judge rendered his judgment granting the exceptions of no cause of action and no right of action, he dismissed Lemmon’s petition in its entirety, with prejudice.

Accepting the factual allegations set forth in the petitions as true, we find that Lemmon has stated a valid cause of action for attorney fees. Accordingly, the trial court erred by granting the School Board’s exception of no cause of action, and we reverse the trial court’s ruling.

The second issue Lemmon raises on appeal is whether the trial court erred by granting the School Board’s exception of no right of action. Lemmon contends that it represented the School Board during the Shell litigation and thus, it clearly | shas the right to assert a claim for unpaid attorney fees arising from that representation.

The School Board responds that the trial court correctly granted its exception of no right of action. The School Board maintains that Lemmon cannot claim entitlement to the statutory attorney fee awarded in the Shell litigation, because this fee was subject to a credit for payments made to Lemmon during the litigation and the amount already paid exceeds the amount of the statutory attorney fee.

In his reasons for judgment, the trial judge found that Lemmon has no right of action, because the statutory attorney fee awarded was $105,362.07, but the payments previously made to Lemmon by the School Board exceed $244,000.00. Thus, the trial court found that the credit due to the School Board more than offsets the statutory attorney fee awarded, leaving Lemmon with no right of action.

An exception of no right of action assumes that the petition states a cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Gibson v. State, 03-1112, p. 4 (La.App. 5 Cir. 2/10/04), 866 So.2d 375, 378, writ denied, 04-960 (La.4/8/05), 899 So.2d 8, cert. denied, 546 U.S. 838, 126 S.Ct. 73, 163 L.Ed.2d 96 (2005); Robertson v. Sun Life Financial, 09-2275, p. 6 (La.App. 1 Cir. 6/11/10), 40 So.3d 507, 511. The exception of no right of action tests whether the plaintiff has a “real and actual interest” in the action, but it does not raise questions of the plaintiffs ability to prevail on the merits or whether the defendant may have a valid defense. Ferguson v. Dirks, 95-560, p. 4 (La.App. 5 Cir. 11/28/95), 665 So.2d 585, 587; Jackson v. Slidell Nissan, 96-1017 (La.App. 1 Cir. 5/9/97), 693 So.2d 1257, 1261; Cutitto v. Boyes, 97-63 (La.App. 5 Cir. 5/28/97), 695 So.2d 1080.

lain the instant case, it is clear that Lemmon has a “real and actual interest” in this suit for unpaid attorney fees. Lem-mon is a law firm that represented the School Board during the Shell litigation in federal court and, as such, it has the right to assert a claim for outstanding or unpaid legal fees. The trial court granted the exception of no right of action on the grounds that the evidence presented in support of the exception of no right of action shows that the payments made to Lemmon during the litigation more than offset the statutory attorney fee awarded. However, while it may be true that Lem-mon has been paid all of the attorney fees to which it is entitled, this is not an appropriate consideration in determining an exception of no right of action. Therefore, the trial court erred in granting the School Board’s exception of no right of action.

In conclusion, while we express no opinion as to the merits of Lemmon’s claims, we find that Lemmon has made sufficient allegations in its petitions to defeat the School Board’s exceptions of no cause of action and no right of action. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.

DECREE

For the foregoing reasons, we reverse the trial court judgment granting the School Board’s exceptions of no cause of action and no right of action, and we remand this case for further proceedings.

REVERSED AND REMANDED.

      . According to Lemmon, the School Board filed suit against Shell Oil Co. in September of 2004, seeking to recover payment of underpaid sales and use taxes.

      . The ordinance provides that attorney fees are assessed at 10% of the tax, interest, and penalties.


source: Caselaw Access Project

author: GRAVOIS, Judge.

license: Public Domain

text:
    BELLSOUTH TELECOMMUNICATIONS, INC. d/b/a AT & T Louisiana v. BENNETT MOTOR EXPRESS, L.L.C.
    No. 13-CA-438.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Michael B. Alker, Attorney at Law, Mandeville, Counsel for PlaintifPAppel-lant.
    C. David Vasser, Jr., Attorney at Law, Baton Rouge, Jack Truitt, Attorney at Law, Covington, Counsel for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   GRAVOIS, Judge.

^Plaintiff, BellSouth Telecommunications, Inc., d/b/a AT & T Louisiana (“AT & T”), filed a suit for damages against defendant, Bennett Motor Express, LLC (“Bennett”), contending that Bennett was liable for damaging two AT & T overhead fiber optic cables after one of Bennett’s vehicles hauling an oversized load pulled down the cables near Edgard, Louisiana. Following a one-day bench trial, the trial court ruled in favor of Bennett, finding no negligence on the part of Bennett, and finding further that the actions of Bennett were not a cause-in-fact of the accident. AT & T now appeals that judgment.

On appeal, AT & T first argues that the trial court committed reversible error by misinterpreting and not applying the plain language of La. R.S. 32:381 to the facts of this case, and in ruling that proof of negligence is required before the |soperator of an oversized load may be liable to a utility company for damages to aerial cables caused by the oversized load coming into contact with the cables. Second, AT & T argues that the trial court erred in finding that the actions of the operator of the oversized load were not a cause-in-fact of the accident.

For the following reasons, we reverse the judgment of the trial court and render judgment in favor of AT & T.

FACTS

The accident in question occurred on December 23, 2006 on Louisiana State Highway 18 (commonly known as the River Road) near Edgard, in St. John the Baptist Parish, Louisiana, around 2:20 p.m. on a clear and sunny day. William C. Sanders, the owner/driver of a tractor/trailer truck, was employed by Bennett as a driver and was in the process of moving a large transformer from a facility in Crystal Springs, Mississippi, across Louisiana to its ultimate destination in California. Mr. Sanders described the transformer as being a large metal box, flat on the top, with three porcelain insulators sticking 18 inches out of the top of the box near the left side (facing forward). The top of the insulators were the highest part of Mr. Sanders’ load, which he had carefully measured at 16 feet 6 inches from the ground after the transformer had been loaded onto his trailer the previous day.

Because Mr. Sanders’ load exceeded the maximum permitted height allowed under La. R.S. 32:381, Bennett had secured the necessary oversized load permit from the Louisiana Department of Transportation and Development (“DOTD”), pursuant to La. R.S. 32:387, which permit noted the measured height of the load (16 feet 6 inches, as measured by Mr. Sanders) and designated the route through |4Louisiana that Mr. Sanders would travel with his load. Mr. Sanders testified that he had transported height-oversized loads along this same route numerous times prior to the date in question, and had in fact moved an identical transformer along this same route only weeks prior to the subject accident, under the same cables, without incident. Mr. Sanders explained that the permit required him to use a highway escort service, which consisted of a “pole truck” that drove in front of his load with a height pole that measured 17 feet high (ie., six inches higher than the highest point of the load). The pole truck’s purpose was to ensure that the load would clear all overhead structures along the designated route. A back escort followed behind Mr. Sanders’ rig. Additionally, the entourage was escorted through Louisiana by a Louisiana state trooper traveling ahead in a marked state trooper vehicle. All of the drivers were in constant communication with each other via CB radio.

On the day in question, Mr. Sanders had been driving for around 5-7 hours. He stated that he had gotten between 8-10 hours of sleep the night before, was alone in his truck, and was not on any medication, drugs, or alcohol. He did not know the speed limit of the highway at the site of the accident, but knew that he was not speeding at that time because he was being escorted by a state trooper. He estimated that his speed at the time of the accident was around 30 miles per hour. He had measured the pole on the pole truck that morning and confirmed that it was 17 feet high.

Mr. Sanders testified that his view of the cables in question was obscured by low hanging tree branches, and that he never saw the cables. He described the highway at the point in question, which was located along side of the Mississippi River levee, as “skinny” (meaning that it had one lane of travel in each direction). |sHe could recall no problems with the road surface. He testified that the driver of the pole truck, who was about 300 yards ahead of him, had radioed to warn him of the low hanging tree branches and to advise him to move to the center of the highway in order to avoid them. He stated that he moved over as far to the left of his travel lane as he could, but could not go to the center of the highway because of oncoming traffic. He testified several times that he was not able to move “much” to the middle of the highway because of oncoming traffic. He said that he was paying attention to the traffic and the tree branches and did not see the cables in the branches. He explained that his load’s right front corner, which was 15 feet high, made contact with the branches as he went through them at about 30 miles per hour. He stated that the high point of his load (the insulators) did not come into contact with the tree branches or the cables. Mr. Sanders said that he did not know how high the tree branches were, but that he was “in it” (the tree), as some of the branches were pretty low and were hitting his load as he went underneath them. He did not feel his truck hit the cables and he did not know that he had damaged the cables until his back escort vehicle, which was about 60 feet behind him, radioed for him to stop because he had a cable hanging on the right front corner of his load. He did not know if the branches may have snagged up in the cables. He reiterated that he was not able to go to the center of the roadway as his pole truck driver had advised him to do because of oncoming traffic.

Mr. Sanders testified that he had worked with this particular escort company many times before and believed that they were very competent in their work. He said that his pole truck driver would always tell him if she hit or cleared an aerial obstruction. He explained that his pole truck driver was able to see the top of her pole via a mirror that was mounted to her dashboard. It was her practice to tell him to go around tree branches, not under them, which is exactly what she did on this | ^particular occasion. He testified that his pole truck driver told him that she hit a few of the branches on her way through. He did not know if she saw the cables in the branches because he never asked her specifically if she did.

Mr. Sanders admitted that he could have stopped his truck and asked his state trooper escort to stop oncoming traffic so that he could go around without hitting the branches. He testified that he had, in fact, done that before on other trips. He didn’t do so this particular time because he didn’t know there was a line there that he would tear down. Mr. Sanders testified that he inspected his load after the accident and there was no damage to the load; the insulators, which were the highest point of the load and were fragile, did not snag anything and were not damaged. One of the cables was hanging on the right front corner of his load, which he described as a “square” corner with no hooks.

Mr. Sanders explained that as the driver, it was his responsibility to measure the height of his load. He said that he had measured this load several times in multiple places, and was confident of his measurements. He furnished these measurements to Bennett who secured the oversized load permit from DOTD. Mr. Sanders did not know if there was a legal requirement that the pole height on the escort truck be set six inches higher than the load’s measurement, but that is what he always did. He admitted to two past incidents in other states where his pole truck cleared an overhead obstruction but his load did not. He agreed that the pole truck tries to drive under the lowest part of an overhead obstruction. He did not' remember if the road at the site of the accident leaned at all or if it was flat. He said that there were no bumps in the road at the point in question that could have made his load bounce higher.

On his previous trip, only weeks earlier, both his rig and his pole truck escort, with the pole height at 17 feet (the same as in this trip), cleared the same |7location. On that earlier trip, he presumed that he had traveled down the center of the highway at this location as his pole truck driver had directed, and did not make contact with the tree branches or the cables. He agreed that the branches were not new and that he had probably gone around the same branches on the previous trip. When asked why he didn’t hit the cables the first time, he stated that as best he could recall, there was no oncoming traffic on that first trip and he was able to go around the branches on that trip.

Mr. Sanders acknowledged that in an affidavit executed in connection with this case he said that the cables were hanging lower than 16 feet 6 inches; in his testimony, however, he clarified that he never saw the cables and could not say how high they were.

At trial, Robert Gentry, AT & T’s outside plant technician, testified that he was in charge of the temporary repair of the damaged cables after the accident. He noted that the fiber optic cables were torn down between pole numbers 116 and 117. He testified that the fiber optic cables are very light, being made of very fine glass, and that when strung between two poles, have very little “sag” because of their light weight. He said that after the accident, temporary cables were strung between the same poles and from the same points of contact on the poles, which were located from between 24 and 25 feet above the ground. On cross-examination, he agreed that he had no information regarding what the lowest point of the cables was immediately prior to the accident.

Michelle Nero, AT & T’s manager of outside plant planning and design, testified that the first of these particular cables (a 36-count fiber optic cable) had been installed at this location in 1996. She was not able to find the job drawing for the installation of this cable. The second cable at this crossing (a 144-count fiber optic cable) was installed in April, 2006, only a few months prior to the subject |8accident. She identified the drawing that represented placement of the second cable in 2006. This drawing showed that the minimum height of the cables’ sag when installed at the midway point between the pertinent poles was 19 feet 3 inches. She described the individual fiber optic strands as very thin glass wire, almost like a piano string, that can be pulled very taut. She stated that at this particular location, the cables spanned 312 feet between the poles; they carry no voltage. She testified that she had been to the site herself and observed that the midpoint between the pertinent poles is the center of the highway. On cross-examination, she stated that sometime after the second cable was installed, the height of the line was measured to confirm that it was installed at the correct height as designed.

Ms. Nero stated that shortly after the accident, temporary repairs were made to the cables. Permanent repairs were done a few months after the accident, when the temporary cables were replaced. At that time, the permanent cables were measured at about 19.5 feet above the ground. She was not aware of any prior complaints regarding the height of these cables or at this location. She had no reason to believe that on the day of the accident, these cables were lower than 19 feet 3 inches above the roadway at the time of the accident. She clarified that the measurements are made from the surface of the roadway up to the point of the lowest sag on the cables.

Dale Spikes, a senior risk specialist with AT & T, testified that his job included investigating damage to cables and calculating the costs of the damages and repairs. He identified invoices generated by AT & T for the cost of repair to these cables.

laSTANDARD OF REVIEW

It is well settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). In Arceneaux, the Supreme Court set forth a two-part test for appellate review of facts: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court; and (2)the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Sistler, 558 So.2d at 1112.

Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

FIRST ASSIGNMENT OF ERROR— statutory interpretation

In its first assignment of error, AT & T argues that the trial court committed reversible error by misinterpreting and not applying the plain language of La. R.S. 32:381 and in finding that it requires proof of negligence before the operator of an oversized load may be liable to a utility company for damages to an aerial cable.

In Burnette v. Stalder, 00-2167 (La.6/29/01), 789 So.2d 573, 577, the Supreme Court reiterated the principles of statutory construction and interpretation:

| ^Legislation is the solemn expression of legislative will and, therefore, the interpretation of legislation is primarily the search for the legislative intent. (Citations omitted.) When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written and no further interpretation may be made in search of legislative intent. La. Civ. Code art. 9. (Citations omitted.) However, if a statute is ambiguous or susceptible of more than one reasonable interpretation, statutory construction is necessary. (Citations omitted.)
The function of statutory interpretation and the construction to be given legislative acts rests with the judicial branch of government. (Citations omitted.) When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. Civ.Code art. 10. (Citations omitted.) Louisiana Rev. Stat. § 1:3 also provides that, when interpreting the revised statutes, courts shall read and construe statutory words and phrases in their context and in accordance with the common and approved usage of the language. See also La. Code Civ. Proc. art. 5053 (same).
Accordingly, the starting point for the interpretation of any statute is the language of the statute itself, while being mindful that the paramount consideration for statutory interpretation is always the ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law. (Citations omitted.) Therefore, when the apparent meaning of the statute appears doubtful or the language can reasonably be interpreted in more than one manner, courts must search deeper to discover the legislative intent. (Citations omitted.)

Louisiana Revised Statute 32:381, found in the Louisiana Highway Regulatory Act, provides:

(A)(1) The height of any vehicle and its load shall not exceed thirteen feet, six inches, except that the height of any vehicle and its load which operates exclusively on the interstate highway system shall not exceed fourteen feet, provided that vehicles operating on the interstate highway system shall have reasonable access, within one road mile from the interstate highway to terminals and facilities for food, fuel, repairs, and rest, unless prohibited for specific safety reasons on individual routes.
(2) The operator of a vehicle that is higher than thirteen feet six inches shall ensure that the vehicle will pass through each vertical clearance of a structure in its path without touching the structure.
| n(3) Any damage to a bridge, underpass, or similar structure caused by the height of a vehicle shall be the responsibility of the owner of the vehicle.
(B) Nothing in this Section shall be interpreted to require the state or any subdivision thereof or any person, firm, or corporation in this state to raise, alter, construct, or reconstruct any overpass, wire, pole, trestle, or other structure to provide such clearance.

The trial court, in its reasons for judgment, fails to mention or apply La. R.S. 32:381, but instead finds that Mr. Sanders’ actions were not the legal cause of AT & T’s damages. Upon de novo review, for the following reasons, we find that such determination by the trial court was legal error.

The Louisiana Highway Regulatory Act, La. R.S. Title 32, provides uniform traffic regulations that “govern the operation of vehicles and pedestrians upon all highways within this state and other areas specifically set forth.” La. R.S. 32:21. La. R.S. 32:381 governs the legal responsibilities and duties of operators of oversized vehicles. It specifically applies in this case because Mr. Sanders’ load height was un-disputedly over 13 feet 6 inches. As such, it is apparent that the trial court committed legal error by failing to apply this statute, considering the particular facts and circumstances of this case.

This statute specifically charges the operator of an oversized vehicle with the affirmative duty, by use of the word “shall,” to ensure that his load will pass through each vertical clearance of a structure in its path without touching the structure. La. R.S. 32:381(A)(2). In the next paragraph, the legislature clearly states that “[a]ny damage to a bridge, underpass, or similar structure caused by the height of a vehicle shall be the responsibility of the owner of the vehicle.” La. R.S. 32:381(A)(3). (Emphasis added.) These two provisions are made without qualification or exception. Accordingly, we find that Mr. Sanders had a legal duty |12to conform his conduct to this statutory standard, and that the facts of this case as noted above show that he failed to do so.

SECOND ASSIGNMENT OF ERROR— cause-in-fact of the accident

Upon de novo review, as set forth below, we find that the trial court’s finding of fact that the actions of the driver, Mr. Sanders, were not the cause-in-fact of AT & T’s damaged cables, is likewise manifestly erroneous.

The violation of a statute or regulation does not automatically, in and of itself, impose civil liability, as Louisiana has no negligence per se doctrine. Civil responsibility is imposed only if the act in violation of the statute is the legal cause of damage to another. Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289, 292-93 (La.1993); Bellsouth Telecommunications, Inc. v. Eustis Eng’g Co., Inc., 07-0865 (La.App. 4 Cir. 12/19/07), 974 So.2d 749, 750. Accordingly, we must conduct a duty — risk analysis. Though the court in Eustis considered a statutory violation, similar to the issue before us in the instant case, it nevertheless conducted a duty— risk analysis utilizing the same duty — risk analysis employed in negligence cases:

In Roberts v. Benoit, 605 So.2d 1032 (La.1991), the Louisiana Supreme Court held that in order to prevail on a negligence claim under La. C.C. articles 2315 and 2316 a plaintiff must prove 5 separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) actual damages (the damages element.) To meet the cause-in-fact element, a plaintiff must prove only that the conduct was a necessary antecedent of the accident, that is, but for the defendant’s conduct, the incident probably would not have occurred. The critical test in Louisiana is phrased in terms of the “ease of association” which melds policy and foreseeability into one inquiry: Is the harm which befell the plaintiff easily associated with the type of conduct engaged in by the defendant? The essence of the legal cause inquiry is whether |1sthe risk and harm encountered by the plaintiff fall within the scope of protection of the duty.
The scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Rules of conduct are designed to protect some persons under some circumstances against some risks. The scope of protection inquiry asks whether the enunciated rule extends to or is intended to protect this plaintiff from this type of harm arising in this manner_ In determining the limitation to be placed on liability for defendant’s substandard conduct, the proper inquiry is often how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced. Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 293-294 (La.1993).

Bellsouth Telecommunications, Inc. v. Eustis Eng’g Co., Inc., supra, at 751-752, quoting from South Cent., Bell Tel. Co. v. Sewerage and Water Board of New Orleans, 94-1648 (La.App. 4 Cir. 3/16/95), 652 So.2d 1090, at 1093-1094.

Applying this standard to AT & T’s claims, it is clear that La. R.S. 32:381 imposes a duty on the operators of oversized loads to ensure that the oversized vehicle will pass through each vertical clearance of a structure in its path without touching the structure, and that the risk of damage to the overhead cables is clearly associated with the operator’s negligent act of failing to ensure that passage. Here, Mr. Sanders failed to conform his conduct to the required standard: he failed to ensure that his load could safely pass under the obstruction. His substandard conduct was accordingly a cause-in-fact of AT & T’s damages.

By his own testimony, Mr. Sanders admitted that he did not follow the instructions of his pole truck driver to move to the center of the roadway in order to clear the tree branches. His pole truck, with a pole height of 6 inches higher than the load height, passed under the cables without contact. Because Mr. Sanders did not move fully to the center of the roadway, his load snagged the branches, which in turn apparently snagged the cables, tearing them down. Mr. Sanders freely acknowledged that he could have asked his state trooper escort to |14stop oncoming traffic so that he could follow the instructions of his pole truck driver to move to the center of the highway, but decided not to do so. He also acknowledged that he had cleared the same cables only weeks before with an identical load of identical height, because on that earlier trip, he apparently was not faced with oncoming traffic and was able to drive down the center of the roadway.

Mr. Sanders’ conduct was also a legal cause of AT & T’s damages. La. R.S. 32:381 was enacted to regulate the height of vehicles traveling on state highways and in particular to protect overhead structures such as bridges and wires from contact with oversized vehicles. AT & T’s cables were damaged by the very act that La. R.S. 32:381 was enacted to prevent. The scope of protection element is clearly met here.

Lastly, AT & T proved that it suffered real damages. Its witness testified regarding his knowledge of the repair of the line. As noted above, Mr. Spikes, a senior risk specialist with AT & T, testified that his job included investigating damages to cables and calculating the costs of the damages and repairs. He identified invoices generated by AT & T for the cost of repair to these cables.

The trial court found as a matter of fact that AT & T’s cables were “necessarily hanging at or below 16 feet 6 inches.” Upon de novo review, we find that this factual finding is likewise manifestly erroneous. The record is devoid of any such evidence. The pole truck, with the pole height of 17 feet, cleared through under the cables without contacting them. Considering the record reviewed in its entirety, it is obvious that at the time of the accident, the cables in question hung at a height of more than 17 feet; otherwise, the pole truck would not have cleared them. AT & T’s representative, Ms. Nero, as noted above, testified that the cables hung at a height of at least 19 feet 3 inches when installed only months before the accident. Mr. Sanders testified that while he could see the branches, he could not | )Bsee the cables. Based on the testimony and evidence introduced, what appears to have actually happened in this case is that Mr. Sanders, unable to move all the way to the center of the roadway because of oncoming traffic, drove through the low hanging branches, making more contact with them than his pole truck did, which branches in turn came into contact with the cables, causing them to become snagged on the right front corner of Mr. Sanders’ load and break.

The trial court also cited to a regulation in the Louisiana Administrative Code as a basis for placing fault on AT & T and exculpating Bennett. That regulation, La. Admin. Code. tit. 70, pt. II § 515(C)(2)(a), states:

(a) The minimum vertical clearance for overhead power and communication lines above the highway and the lateral and vertical clearances from bridges shall conform with the National Electrical Safety Code. However, in no instance should an aerial crossing have less vertical clearance over the roadway surface than 20 feet. A minimum vertical clearance of 16 feet shall be maintained between existing ground elevation and any aerial installation when such installation is within highway right-of-way, but does not cross the traveled surface of a highway.

(Emphasis added.)

Irrespective of this regulation, the evidence in this case is clear that the height of AT & T’s cables, whatever they may have actually been, was not a cause-in-fact of this accident. This is because the pole truck, at a height of 17 feet, cleared the cables, and that the highest point of the load was only 16 feet 6 inches. There is no direct evidence in the record of the cables’ exact height, except the testimony of Ms. Nero, AT & T’s witness, who stated that the cables were designed and built at a height no lower than 19 feet 3 inches only months prior to the accident. Accordingly, upon our de novo review, we find the fact that the cables may have had a ground clearance of slightly less than the cited Administrative Code’s minimum height requirement of not less than 20 feet (and as such, even if technically in violation of the cited Administrative Code’s minimum height | ^requirement) was not a cause-in-fact of the subject accident; rather, it was Mr. Sanders’ failure to follow his pole truck driver’s instructions to move to the center of the highway on a clear path around the branches that was the sole cause-in-fact of this accident.

DAMAGES

AT & T prays that this Court remand the matter to the trial court for calculation of damages. However, we find that a remand is unnecessary. At trial, AT & T presented evidence of its damages through the introduction of invoices evidencing the costs to repair the fiber optic cables through the testimony of its witness Dale Spikes. When the record is complete, the court of appeal is empowered, under La. C.C.P. art. 2164, to award damages in cases having the procedural posture this case has.

At trial, Mr. Spikes testified regarding the invoice he submitted as proof of AT & T’s damages, which totaled $33,474.52. His unrefuted testimony was that AT & T incurred $18,052.12 in expenses to repair the subject cables. Mr. Spikes was unable, however, to provide personal knowledge in support for the portion of the invoice noting “Loss of Use” in the amount of $15,422.40. He testified that this figure had been furnished to him by someone else at AT & T and that he could not supply any more information or documentation relating to this element of damages. Accordingly, based on the evidence of damages submitted by AT & T at trial, we find that AT & T is entitled to an award of $18,052.12 in damages.

\ ^CONCLUSION

For the reasons stated herein, based on our de novo review of the entire record of this matter, we reverse the judgment of the trial court, finding that the trial court committed legal error in failing to apply the provisions of La. R.S. 32:381 to the particular relevant facts of this case. We also find that the evidence in this case clearly shows that Bennett’s driver, Mr. Sanders, violated the provisions of La. R.S. 32:381, and that such violation was a cause-in-fact and the sole legal cause of the accident that caused damages to AT & T’s cables. Further, based on the record before us, we hereby render judgment in favor of AT & T and against Bennett in the amount of $18,052.12. All costs of this appeal are assessed to Bennett.

REVERSED AND RENDERED.

      . The record reflects that two AT & T fiber optic cables were damaged in the accident. The cables were, however, wrapped together as one cable at the point in question where they crossed over the roadway. For consistency and accuracy, we will refer to the cables that were damaged in this accident in the plural throughout this opinion, although in reality they were wrapped together as one cable at the point in question.

      . Mr. Sanders’ deposition testimony was accepted into evidence at trial in lieu of his live testimony.

      . It has not been claimed that Mr. Sanders’ vehicle was improperly permitted or that it deviated from its assigned route.

      . See also Prejean v. Guillory, 09-495 (La.App. 3 Cir. 1/13/10), 28 So.3d 1174 rev'd in part on other grounds, 10-0740 (La.7/2/10), 38 So.3d 274. In that case, after reversing the trial court and finding in favor of plaintiff in her breach of contract case, the court of appeal declined to remand to the trial court for assessment of damages, finding that plaintiff had already been afforded the opportunity in the original trial to submit any relevant evidence of damages. The court found that "protracting the litigation to receive evidence that should have been obtained for the original trial is to be avoided.” Accordingly, the court of appeal rendered judgment on the record before it.


text:
    Theresa S. MANDIBLE v. JAN RALEY & ALLSTATE INSURANCE COMPANY.
    No. 13-CA-461.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Anthony L. Glorioso, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellee.
    Ronald L. Faia, Jr., Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

12Plaintiff, Theresa Mandible, filed suit against defendants, Jan Riley and Allstate Insurance Company, for damages resulting from a vehicular collision. After a bench trial, the trial court rendered judgment in favor of plaintiff in the amount of $27,497.50, finding defendant, Ms. Riley, to be 100% at fault for the accident. Defendants now appeal the factual finding of the trial court that Ms. Riley was the sole cause of the accident. For the following reasons, we affirm.

Facts

This cases arises from a four-car collision occurring on February 19, 2011, in the right northbound lane of Terry Parkway in Terrytown. Plaintiff, Theresa Mandible, was travelling on Terry Parkway towards the Crescent City Connection when she observed the vehicle in front of her, driven by Deborah Abunser, come to an abrupt stop. Ms. Mandible testified that she slammed on her brakes at which time her vehicle was struck from the rear by defendant and was pushed into the vehicle in front of her. Ms. Mandible testified that Ms. Abunser’s rear bumper sustained minimal damage, while the rear of her vehicle sustained significant | ^damage, totaling $11,733.94. Ms. Mandible felt the effects of the accident in her knee, back, and neck for which she sought treatment at West-bank Rehab.

Deborah Abunser’s deposition testimony was admitted into evidence at trial. Ms. Abunser stated that she stopped for a red light at Terry Parkway when she was struck from the rear by Ms. Mandible and subsequently struck from the rear a second time only seconds later. As a result of the first impact, Ms. Abunser struck the vehicle in front of her, driven by James Maison. Ms. Abunser was unaware of the amount of estimated damages sustained to her vehicle, although testifying that more damage was sustained to the rear end of her vehicle than the front end.

Defendant, Jan Riley, testified that she was travelling in the right hand lane of Terry Parkway approaching the Crescent City Connection with her two grandchildren riding in the backseat. Ms. Riley testified that she saw brake lights ahead of her. She began to slow down, but the vehicle in front of her, driven by plaintiff, came to a complete stop. Ms. Riley testified that she could not avoid the collision and struck the rear of plaintiffs vehicle. Ms. Riley stated that she observed plaintiff strike Ms. Abunser’s vehicle prior to her collision with plaintiff. Ms. Riley was unaware of the total damages to her vehicle, but testified that the vehicle was totaled by the insurance company.

Deputy Mike Tisdale, accident investigator for the Jefferson Parish Sheriffs Office Traffic Division, investigated the accident at issue and took verbal statements from each driver that he later documented in a written report. Deputy Tisdale testified that plaintiff stated that Ms. Abunser came to a sudden stop and that she struck Ms. Abunser’s vehicle in the rear. He did not recall plaintiff stating that she was first struck in the rear before colliding with Ms. Abunser’s vehicle. Deputy Tis-dale further testified that Ms. Abunser’s statement indicated that she was struck twice from the rear. Deputy Tisdale additionally indicated that | ¿defendant’s front bumper sustained severe damage. Deputy Tisdale testified that plaintiff and defendant were following too close, but he did not issue a citation to either party.

Assignment of Error

On appeal, defendants assert that that the trial court erred in finding defendant, Jan Riley, was 100% at fault for the accident. Defendants argue that the testimony of Deputy Tisdale, Deborah Abunser, and Jan Riley confirm that plaintiff first struck Ms. Abunser prior to defendant colliding with plaintiff. As such, defendants argue that the trial court should have found plaintiff comparatively at fault.

Law & Discussion

A court of appeal may not set aside a trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong. Under the manifest error standard, a determination of fact is entitled to great deference on review. McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La.7/1/11), 65 So.3d 1218, 1230. In order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. The reviewing court must always keep in mind that “if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. Reasonable evaluations of credibility and reasonable | inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. at 882.

La. R.S. 32:81 imposes a duty on a motorist not to follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the preceding vehicle, the traffic conditions, and the condition of the roadway. McGowan v. Loupe, 08-810 (La.App. 5 Cir. 3/24/09), 11 So.3d 24, 26; citing Phipps v. Allstate Ins. Co., 05-651, p. 4 (La.App. 5 Cir. 2/27/06), 924 So.2d 1081, 1084. In a rear-end collision, the following motorist is presumed to have breached this duty and he bears the burden of proving that he was not negligent. Id.

A following motorist may assume that the preceding vehicle is being driven with care and caution; however, he must drive at an appropriate speed and must maintain a distance between the two vehicles that would enable him to avoid a collision with the preceding vehicle under circumstances which should be reasonably anticipated. Id. The following driver may rebut the presumption of fault by establishing that he had his vehicle under control, closely observed the lead vehicle, and followed at a safe distance under the circumstances. Id.

At trial, defendant admitted that she observed plaintiff slow her vehicle and come to a complete stop; however, she was unable to avoid a collision with plaintiff. We find this is tantamount to admitting her negligence in following plaintiffs vehicle too closely. Moreover, defendant’s testimony, that she observed plaintiff strike Ms. Abunser’s vehicle prior to defendant colliding with plaintiff, did not rebut her presumption of fault. The collision was not simultaneous, and no evidence exists to support a finding that plaintiffs negligence, if any, in following Ms. Abun-ser too closely, was the proximate cause of defendant’s collision, and does not absolve defendant of liability from failing to perform her duty to follow plaintiff at a safe distance.

16While conflicting testimony existed as to whether plaintiff first struck Ms. Abun-ser prior to defendant striking plaintiff, the trial court apparently accepted plaintiffs version, which we do not find unreasonable upon review of the record. Additionally, since the defendants failed to bear their burden of proving defendant, Ms. Riley, did not breach her duty as a following motorist under La. R.S. 32:81, we find the trial court was not manifestly erroneous or clearly wrong in finding defendant was 100% at fault for the collision with plaintiff and in awarding damages against defendants.

Decree

Accordingly, we affirm the judgment of the trial court in favor of plaintiff, Theresa Mandible.

AFFIRMED.

      . The trial court awarded plaintiff $21,000 in general damages, $6,397.50 in medical expenses and $100 for her deductible for repairs to her vehicle.


author: JUDE G. GRAVOIS, Judge.

text:
    PARISH OF JEFFERSON v. POWERLINE, LLC.
    No. 13-CA-462.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Kenneth B. Krobert, Nicole M. Tomba, Assistant Parish Attorneys, Harahan, LA, for Plaintiff/Appellee.
    Thomas R. Blum, Luke P. Larocca, Attorneys at Law, New Orleans, LA, for Intervenor/Appellant.
    Julie U. Quinn, Attorney at Law, New Orleans, LA, for Intervenor/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

12This case concerns review of an expropriation compensation award to Orleans Shoring, LLC (“Orleans Shoring”), the lessee of a parcel of land in Jefferson Parish on the corner of Powerline Drive and Riverside Drive (a/k/a the River Road) near the City of Harahan, a portion of which parcel was expropriated by the Parish of Jefferson (“the Parish”) for improvements necessary for implementation of the Southeast Louisiana Urban Flood Control Jefferson Parish East Bank Project (“the SELA Project”). After a one-day bench trial on the issue of compensation, the owner of the land, Powerline, LLC (“Pow-erline”), was awarded $15,216.36 in compensation for the taking, and the lessee of the land, Orleans Shoring, was awarded $65,474.50 in compensation for the taking. The owner, Powerline, did not appeal the trial court’s judgment in its favor. The lessee, Orleans Shoring, appealed the trial court’s judgment, arguing that the trial court’s l3award of compensation was inadequate to fully compensate it for its losses resulting from the taking. The Parish neither appealed the judgment, nor answered Orleans Shoring’s appeal.

For the reasons that follow, we affirm.

FACTS

Christian Cancienne testified at trial that he is the sole owner of Powerline, the owner of the expropriated property, and of Orleans Shoring, the lessee of the expropriated property. The record shows that in June of 2012, the Parish filed this expropriation proceeding against Powerline, expropriating a portion of “Parcel B,” the land upon which Orleans Shoring’s business operations are located, asserting that the expropriated portion of Parcel B was required for improvements necessary for an aspect of the SELA Project. A stipulation entered at trial shows that the total area of Parcel B is 43,412 square feet, and that the expropriated portion of Parcel B totaled approximately 1,348 square feet. The Parish obtained an appraisal from Wayne Sandoz, a certified appraiser, who calculated Powerline’s total damages for the taking at $11,100.00. Powerline declined the Parish’s offer of compensation in this amount and this suit ensued.

Orleans Shoring intervened in the suit in November of 2012, claiming that it was the lessee of the property expropriated. It claimed that it used the leased property as a storage and marshaling yard in the operation of its business, which was primarily the elevation, leveling, and foundation repair of houses and other buildings in the greater New Orleans area. It claimed that as a result of the expropriation, it would lose at least five parking spaces necessary to the conduct of its business, as well as storage space for one of its 40-foot trailers, and space for a large storage container, a pipe rack, and a work shed, among other things, and |4would lose the ability to load and rotate its trailers efficiently. It asserted that as lessee of the expropriated land, it was entitled to compensation from the expropriating authority-

In its petition of intervention, Orleans Shoring also alleged that it was attempting to purchase adjacent unimproved property, which was larger in area than the expropriated portion of Parcel B (but which could not be subdivided), and upon which it could relocate that portion of its business affected by the taking, at a total cost (including required improvements) of approximately $200,000.00.

At trial, Orleans Shoring proposed a second mitigation scenario. It presented a letter from the mayor of the City of Harahan, offering to rent Orleans Shoring six parking spaces from the City for employee parking at $10.00 per day per space, which parking spaces were located approximately three blocks away from the subject property, for the remainder of the mayor’s term (or about three years). At trial, Orleans Shoring claimed that these costs, combined with other additional parking space from the City of Harahan for two of its large trucks and trailers, would total over $1 million dollars over Mr. Cancienne’s 30-year life expectancy, as determined by Orleans Shoring’s economic expert. Alternatively, Orleans Shoring proposed that in order to be fully compensated for the taking, its compensation should be the amount of money necessary for purchasing and improving the adjacent tract of land discussed above.

Orleans Shoring did not present any evidence relating to relocation costs of its business as a whole, as its owner testified that he did not wish to relocate the business. Nor did Orleans Shoring present any evidence of what it would cost to relocate the equipment (other than the vehicles) that was situated on the portion of | fitaken land. Orleans Shoring also failed to present any evidence relative to any other business expenses related to the taking, such as lost profits.

The trial court awarded Orleans Shoring $65,474.50, representing approximately one-fourth of the amount it claimed under its land purchase compensation scenario. Orleans Shoring now appeals, claiming that this award fails to fully compensate it for its losses resulting from the taking. On appeal, it asks for compensation in the amount of $261,898.00, the amount needed for purchasing and improving the adjacent tract of land.

ANALYSIS

In an expropriation proceeding, a factfinder’s factual determinations as to the value of property and entitlement to other types of damages are subject to the manifest error standard of review, while the amount of damages awarded is subject to the abuse of discretion standard of review. State, Dep’t of Transp. & Dev. v. Monteleone, 11-1013 (La.App. 5 Cir. 11/13/12), 106 So.3d 153, 158, reh’g denied, writ denied, 13-0118 (La.3/1/13), 108 So.3d 1179.

The law is clear that under the Louisiana Constitution of 1974, the framers had the intent of expanding the right to compensation in expropriation proceedings to include not only property owners, but also those other persons who have legal status to require compensation, such as lessees. State, Dept. of Transp. & Dev. v. Clark, 548 So.2d 365, 367 (La.App. 2 Cir.1989). A lessee’s damages may consist of loss of business profits and other business losses, and the expense of relocating, if proven and applicable. Clark, supra; Huckabay v. Red River Waterway Com’n, 27,113 (La.App. 2 Cir. 10/12/95), 663 So.2d 414; Holland v. State, Dept. of Transp., 554 So.2d 727 (La.App. 2 Cir.1990), writ denied, 559 So.2d 125 (La.1990); Packard’s Western Store, Inc. v. State, Dept. of Transp., 618 So.2d 1166 (La.App. 2 Cir. 1993).

The burden of proving damages in an expropriation proceeding rests on the party seeking them, who must prove such damages with legal certainty by a preponderance of the evidence. Huckabay v. Red River Waterway Com’n, supra, at 421. Speculation, conjecture, mere possibility or the unsupported probability are not sufficient to support such an award. Id.

The trial court awarded Orleans Shoring compensation in the amount of $65,747.50 for the taking. On appeal, Orleans Shoring asks for compensation in the amount of $261,898.00, which consists of the total cost of Orleans Shoring to purchase the adjacent tract of land and to make the required improvements thereon. As noted above, the trial court awarded Orleans Shoring approximately one-fourth of the amount it claimed, finding that it proved that it would be damaged by the loss of the expropriated portion of Parcel B, but reasoned that as a lessee, the law did not require that it be made the owner of new property as just compensation for the partial taking of its leased premises. As such, the trial court awarded Orleans Shoring only an amount representing approximately one-fourth of the amount it claimed was the purchase price of the adjacent property (plus necessary improvements), reasoning that the new property was approximately four times larger than the expropriated portion of the leased property.

In brief, Orleans Shoring cites State Through Dept. of Highways v. Constant, 369 So.2d 699 (La.1979), for the proposition that it is to be compensated to the full extent of its loss, which it alleges on appeal is $261,898.00. However, Constant discussed the compensation due to an oumer of expropriated property, which therefore makes that case distinguishable from the instant case and accordingly not applicable to the facts herein.

|7The jurisprudence noted above establishes that while lessees are entitled to compensation for certain losses they may have suffered from the expropriation when their leased premises are taken, a lessee is not entitled to be made the owner of other immovable property as just compensation for the taking of the leased premises or a portion thereof. Indeed, the court in State, Dept. of Transp. & Dev. v. Clark, supra, stated in dicta:

“... while a lessee of an expropriated facility, who is a party to an expropriation lawsuit and whose facility is truly unique in its location, may be entitled to the cost of renovating another facility possessing those unique location requirements, that lessee might well be overcompensated if made the owner of the other facility.”

Clark, supra, 548 So.2d at 367-368.

Owners and lessees of expropriated property have different and separable interests in the property, even when the owner of the land also owns the corporation that is the lessee of the land, and a lessee’s reliance on cases that determined the compensation due owners, such as Constant, supra, upon which Orleans Shoring relies in brief, is inappropriate. Clark, supra. It is apparent that Orleans Shoring proceeded as if it holds an ownership interest in the subject property, which it clearly does not, or perhaps lost sight of the fact that it is a distinct legal entity from either Powerline or Mr. Cancienne, though he is the sole owner of both.

Orleans Shoring, as lessee of this property, had the burden of proof to establish both the type(s) of damages due to a lessee of expropriated property, such as business losses, lost profits, and/or relocation costs, and the amount(s) thereof, with reasonable legal certainty, contrary to its assertion in brief that the burden of proof lay with the Parish. Orleans Shoring met its burden regarding establishing | sthat the taking would require it to relocate certain vehicles and equipment and would cause it to lose between five and ten parking spaces integral to its business, but the record is void of particular evidence regarding the amount of those costs (other than the proposed lease from the City of Harahan).

In support of its claim for the amount of compensation due it, Orleans Shoring introduced into evidence an “Option to Purchase Agreement” between Mr. Cancienne, in his individual capacity, and George Stringer, III, the owner of the adjacent property. The Option to Purchase Agreement fails to mention Orleans Shoring or Powerline, though it states that Mr. Canci-enne is allowed to assign the agreement during the 90-day option period to “any limited liability company of his choice.” Thus, there was no requirement that Mr. Cancienne exercise the agreement, assign it, or assign it to Orleans Shoring in particular. The Option to Purchase Agreement, accordingly, does not meet Orleans Shoring’s burden of proof regarding the amount of any damages it might have suffered due to the taking as a lessee rather than as an owner.

Further, and importantly, we note that the Parish did not appeal the award granted to Orleans Shoring, nor answer Orleans Shoring’s appeal. In brief, the Parish concedes that Orleans Shoring did prove that it would suffer some compensa-ble damages as a lessee of the taken property. We agree that the record supports this factual finding. We further agree with the Parish’s statement in brief that “[t]he Trial Court should be commended for fashioning a fair result for the parties considering the lack of evidence directed at proving the true loss to Orleans Shoring’s leasehold interest.”

| Accordingly, under the particular and somewhat unique facts and circumstances involved in this case, and also particularly considering the fact that the Parish did not appeal the amount of the award in Orleans Shoring’s favor nor answer Orleans Shoring’s appeal, we find the trial court did not err in awarding Orleans Shoring compensation for the taking in the amount of $65,474.50. As such, Orleans Shoring’s assignment of error is without merit.

CONCLUSION

Accordingly, for the reasons assigned above, the trial court’s judgment in the amount of $65,474.50 in favor of Orleans Shoring is hereby affirmed.

AFFIRMED.

      . The trial court signed a Partial Judgment of Expropriation in this proceeding on August 21, 2012, granting the Parish’s Petition for Expropriation of Property and ordering that “defendant be compensated for this lawful taking in an amount to be determined in subsequent proceedings herein.” Accordingly, the only issue before the trial court for determination at the trial was the amount of compensation, if any, due Powerline and Orleans Shoring as a result of the taking.

      . Mr. Sandoz’s appraisal report was introduced into evidence.

      . Mr. Cancienne testified that he was unaware if the City Council of Harahan had authorized the Mayor to lease those parking spaces to Orleans Shoring or if the City Council had passed a resolution to that effect. The letter from the Mayor to Orleans Shoring does not contain this information.

      . Orleans Shoring has not claimed that the particular location it occupies is unique in the sense that the business could not be successfully relocated elsewhere, only that it did not wish to relocate; nor did the current mayor of Harahan wish it to relocate. Testimony and evidence relative to Orleans Shoring’s financial statement were taken under seal.

      . The lease between Powerline and Orleans Shoring was never offered into evidence; thus, the trial court had no information as to the term of the lease or the amount of the rent. The parties stipulated that the lease was in its third iteration since 2006.

      . Where defendant neither appealed from judgment for plaintiff nor answered appeal of plaintiff who complained of inadequacy of damages awarded, Court of Appeal was without power to reverse judgment or to reduce amount of award to plaintiff. Peppers v. Toye Bros. Yellow Cab Co., 198 So. 177 (La.Ct.App.1940). Though in this case the Parish is actually the plaintiff and Orleans Shoring an intervenor/defendant, the legal precept is the same.