text:
    Philip J. CAMBRE v. ST. JOHN THE BAPTIST PARISH.
    No. 12-CA-590.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Thomas F. Daley, District Attorney, William D. O’ Regan, III, Assistant District Attorney, Edgard, LA, for Defendant/Appellee.
    Philip J. Cambre, Laplace, LA, for Appellant/In Proper Person.
    Salvatore G. Lovecchio, Attorney at Law, Boutte, LA, for Plaintiff/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

^Appellants, Philip J. Cambre and Dutch Bayou Development Co., Inc. (“Dutch Bayou”), appeal from the trial court’s judgment awarding them $4,080.00 in damages for breach of contract claims against St. John the Baptist Parish (“the Parish”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Appellants filed this suit against the Parish seeking to enforce the provisions of a contract and for damages for breach of contract. This case involves property located in Reserve, Louisiana that was part of an original land grant to the Cambre family. The property initially ran from the river to the 80 arpent line north of Airline Highway. Over the years, the property was divided into several lots wherein various lots were sold for commercial or public use and the remaining lots were sold to Dutch Bayou. The breach of contract claims in this lawsuit involve prior litigation between the parties and disputes involving Lots 2, 3, and 5 and Cambre Road.

Suit No. 1: 40th Judicial District Court, Case No. 34,448, Nature Land Co., L.L.C. v. Dutch Bayou Development Co., Inc. and Philip Cambre:

On October 30, 1995, Nature Land Co., L.L.C. (“Nature Land”) filed a petition for preliminary and permanent injunction and possessory action against Dutch Bayou and Mr. Cambre, claiming it had possessed Cambre Road for over 30 years and therefore was entitled to judgment granting Nature Land the right of possession. On October 28, 1998, the trial court ordered Nature Land to pay Dutch Bayou compensation in the amount of $7,500.00 for a “personal servitude, right of use” of Cam-bre Road with the ability to assign and sublet. However, the judgment precluded Nature Land from receiving any consideration for subletting or assigning use of Cambre Road up to the 80 arpent line. Additionally, Nature Land was required to give Dutch Bayou advance notice of any assignment or sublet. The judgment further provided that the Cambre family, heirs, and assigns, retained the right to negotiate with third parties who used the road “to the northern end of the 80 arpent line for commercial gain (not limited to monetary gain).”

Suit No. 1 is replete with complaints and cross-motions by Nature Land, Dutch Bayou and Mr. Cambre concerning negotiating the use of Cambre Road with third party defendant, Cypress Ridge Hunting Club (“CRHC”), a lessee of Nature Land. This case is still pending in the district court.

Suit No. 2: 40th Judicial District Court, Case No. 52,293, Philip Cambre v. St. John the Baptist Parish:

Thereafter, the Parish executed a 99-year lease commencing on May 15, 2006 to the Louisiana National Guard for the purpose of constructing a building on the road servitude leading from Airline Highway to Cambre Road. Mr. Cambre filed suit against the Parish claiming that the lease as confected blocked his access |4to Lots 2, 3 and 5. Mr. Cambre argued that the right of way servitude had belonged to the Cambre family since 1942 and was subsequently owned by Dutch Bayou. On November 22, 2006, Suit No. 2 was settled and resulted in the Parish, Mr. Cambre and Dutch Bayou executing a “Full Release.” At the same time, Mr. Cambre and his wife executed a Quitclaim Deed and sold Lots 2 and 3 and Cambre Road to the Parish.

In the Full Release the Parish agreed that it would:

1. Not intervene in any way in [Suit No. 1] (“Item 1”);
2. Allow Dutch Bayou Development Co., Inc., its successors and assigns, and/or officers access to Lot 5 through currently existing points, which may include the levee access point at the end of Airport Road or such other points of access that may become available in the future (“Item 2”); and
3. Allow Philip J. Cambre and others to enter upon the property that is the subject of this suit and sale for the sole purpose of removing all or part of the camps located on this property and for the removal of firewood for the personal use of said Philip J. Cambre, through the end of 2006 and if necessary, to be extended, the removal of the camps, using the alternate routes until the 31st day of March, 2007 (“Item 3”).

The present litigation: 40th Judicial District Court, Case No. 54,197, Philip J. Cambre v. St. John the Baptist Parish:

On August 3, 2007, Mr. Cambre and Dutch Bayou filed this suit against the Parish claiming that the Parish breached the three stipulations as set forth in the Full Release executed in Suit No. 2. Mr. Cambre claimed that the Parish breached Item 1 by intervening in Suit No. 1 and allowing CRHC use of Cambre Road. Dutch Bayou claims that Item 2 was breached by the Parish when Dutch Bayou was denied access to Lot 5. Mr. Cambre further claimed that Item 3 was breached by the Parish when he was denied access to remove his camps which resulted in subsequent damages. In a supplemental and amending petition, Dutch Bayou |sfurther claimed that it was entitled to compensation for the “taking” of the bridge that crosses over the drainage canal south of the protection levee near Cambre Road and that allows access to Lot 5 and the camps.

The property involved is located north of Airline Highway and south of the 80 ar-pent line, specifically Lots 2, 3 and 5 which are north of the drainage canal. Prior to trial, the trial judge, parties and counsel visited the property and observed the access routes, and gates that were central to the merits of Mr. Cambre and Dutch Bayou’s claims. Trial on the merits was held on August 22, 23, and 24, 2011. Evidence included the court visiting and viewing some of the property.

The trial court rendered judgment on September 19, 2011. The trial court found that the Parish did not intervene in any way in Suit No. 1 and thus, did not violate Item 1 in the Full Release in Suit No. 2. The trial court found that the Parish did not violate Item 2 and that appellants had access to Lot 5 at all times. The trial judge further found that the Parish violated Item 3 and committed a partial breach of Item 3 of the Full Release in Suit No. 2, when the appellants were partially denied access to remove the camps. However, the trial court found that the appellants failed to mitigate their damages and allocated 75% of the fault to appellants. The trial court determined the camps to be valued at $16,320.00. The trial court rendered judgment in favor of appellants and against the Parish in the amount of $4,080.00 in damages for the breach of contract claim which was the value of the camps reduced by 75% for appellants’ fault. This appeal followed.

LEGAL ANALYSIS:

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. Factual findings of a trier of fact may not be disturbed by an appellate court absent manifest error. Allerton v. Broussard, 10-2071 (La.12/10/10), 50 So.3d 145, 145, reconsideration denied, 10-2071 (La.1/28/11), 56 So.3d 974. To reverse a fact finder’s determination of facts, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes the trier of fact is manifestly erroneous or clearly wrong. Id.; S.J. v. Lafayette Parish School Bd., 09-2195 (La.7/6/10), 41 So.3d 1119, 1127. Where a conflict in the testimony exists, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the reviewing court may feel that its own evaluations and inferences are more reasonable. McGlothlin, 65 So.3d at 1231; Allerton, 50 So.3d at 145; Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

In their first assignment of error, appellants claim that the trial court erred by not finding that the Parish intervened in Suit No. 1. Appellants assert that the trial court did not consider evidence that the Parish interfered with Mr. Cambre’s attempts to negotiate with third party defendant, CRHC, in Suit No. 1. Secondly, appellants contend that the trial court mistakenly concluded that the Quitclaim Deed and Full Release executed in Suit No. 2 effectively settled Suit No. 1. Finally, appellants claim that the trial court’s interpretation of the Full Release in Suit No. 2 rendered Item 1 of that Release meaningless.

Mr. Cambre first contends that the Parish intervened in Suit No. 1 by allowing CRHC use and control of the ingress and egress of Cambre Road. At trial, the Parish acknowledged that permission to use Cambre Road was given to CRHC after the execution of the Quitclaim Deed in favor of the Parish and the Parish became the owner of Lots 2 and 3 and Cambre Road. In its reasons for judgment, the trial court found that Mr. Cambre and his wife failed to reserve any |7ownership rights or right of use to Cambre Road in the Quitclaim Deed, except for the limited access granted in the Full Release.

Appellants also contend that the trial court mistakenly confused this case with prior litigation. Appellants claim that in the reasons for judgment the trial court incorrectly stated that the Quitclaim Deed and Full Release were “in effect a settlement” of Suit No. 1 and incorrectly found that Suit No. 1 was “no longer a viable lawsuit subject to intervention.” Appellants argue that the Full Release and Quitclaim Deed settled Suit No. 2, but not Suit No. 1. Moreover, appellants claim that the Parish is not a defendant in Suit No. 1 and that case is still pending in district court.

Appellants finally claim that the trial court’s interpretation of the Full Release in Suit No. 2 rendered Item 1 in that release meaningless. Specifically, appellants assert that they would not have agreed to exclude the Parish as a defendant, nor would they have added Item 1 if there was no longer a viable suit at the signing of the Full Release in Suit No. 2.

Appellate courts review the correctness of the judgment, rather than the reasons for the underlying judgment. Noto v. Noto, 09-1100 (La.App. 5 Cir. 5/11/10), 41 So.3d 1175, 1181. In Schurr v. O’Dwyer, 09-24 (La.App. 5 Cir. 9/3/09), 22 So.3d 959, 960, the court stated:

La. C.C.P. art. 1841 provides that appeals lie from final judgments only. A final judgment “determines the merits in whole or in part,” while an interlocutory judgment “does not determine the merits but only preliminary matters in the course of the action.” See also New Orleans Firefighters Ass’n Local 632 v. City of New Orleans, 99-0011 (La.App. 4 Cir. 11/24/99), 750 So.2d 1069, 1072. Written reasons for judgment are considered to be interlocutory rulings and do not cany the finality of a judgment. Taylor v. Brandner, 05-970 (La.App. 5 Cir. 4/25/06), 928 So.2d 751, 755 (citing Davis v. Farm Fresh Food Supplier, 2002-1401 (La.App. 1 Cir. 3/28/03), 844 So.2d 352, 354). Appellate courts review the correctness of the judgment, rather than the reasons for the underlying judgment. Irsch v. Argonaut Great Cent. Ins. Co., 02-988 (La.App. 5 Cir. 1/28/08), 841 So.2d 831, 841. Likewise, the trial court’s reasons for judgment, while defining the principles upon which the court is deciding a case, form no part of the official judgment signed and from which appeals are taken. La. C.C.P. art.1917, art.1918; Vintage Contracting, L.L.C. v. Dixie Bldg. Material Co., Inc., 03-422 (La.App. 5 Cir. 9/16/03), 858 So.2d 22, 30.

The record establishes that Mr. Cambre consistently represented himself in proper person in this suit and in the prior litigations mentioned herein, with occasional advice or consultation with attorneys. Mr. Cambre was an active participant in the negotiations that occurred with the Parish and was fully aware of the language used in the Full Release in Suit No. 2. Mr. Cambre and his wife transferred, sold, and assigned all of their rights and title to Lots 2 and 3 and Cam-bre Road to the Parish, except for the limited access stated in the Full Release in Suit No. 2. They did not reserve any ownership rights or right of use to Cambre Road. The Parish owned Cambre Road without any restrictions after execution of the Quitclaim Deed. Any rights that Mr. Cambre may have against third party defendant, CRHC, in Suit No. 1 prior to execution of the Quitclaim Deed are not determinative as to whether the Parish intervened in Suit No. 1 by allowing CRHC to use Cambre Road after the Parish became owner of the road.

The Parish owned the road at the time it allowed use by CRHC. Thus, the Parish did not interfere in any right of compensation that Mr. Cambre had for use of the road when he was still owner, as asserted in Suit No. 1. We find that the trial court was not manifestly erroneous in finding that the Parish did not intervene or interfere in Suit No. 1. This assignment of error is without merit.

In their second assignment of error, appellants argue that the trial court erred in finding the Parish did not violate Item 2 of the Full Release in Suit No. 2 and in finding that Dutch Bayou, and its successors and assigns, or officers had access to Lot 5 at all times. Appellants contend that the trial court failed to acknowledge that the Parish refused to allow rear access to Lot 5 via Cambre Road and the | ¡¡canal. Appellants next assert that the trial court erred in not concluding that any access appellants had via the protection levee was meaningless. Appellants finally claim that locked gates along the access routes prevented appellants from having access to Lot 5.

In the Full Release in Suit No. 2, Item 2 provided permanent access to Lot 5 for the owner, Dutch Bayou, its successors and assigns, and/or officers. Specifically, Item 2 provided that the Parish:

2. [Would] allow Dutch Bayou Development Co., Inc., its successors and assigns, and/or officers access to Lot 5 through currently existing points, which may include the levee access point at the end of the Airport Road or such other points of access that may become available in the future.

In the reasons for judgment, the trial court laid out the applicable routes that allowed appellants access to Lot 5 and the gates contained within those access routes, namely:

Direct Route: Shorter and more direct, from New Road (and previously Old Road) to Bridge over drainage canal; requires passage through Gates Nos. 1 and 2.
Alternative Route: Longer, roundabout route utilizing Airport Road toward 80 Arpent Line, and then by drainage servitude levee which eventually reaches and abuts lot 5; requires passage through Airport Road Gates la and lb, and Gate No. 2.

The trial court further described the location of the gates encountered along the above access routes as follows:

Besides the Airport Road Gates la and lb, there were also three gates at the intersection of the drainage canal and the north-south bridge which crosses it. These gates were labeled on Exhibit Court-1 as:
Gate No. 1: — directly on the bridge but toward the south;
Gate No. 2: — on the levee, separating east from west; and
Gate No. 3: — north of the drainage canal and levee, at Cambre Road.

| inThe record establishes that after the Full Release was executed, the National Guard absorbed the Old Road, by which appellants had previously accessed their property, and closed it to the public February 2007. Upon closure of the Old Road, appellants were provided temporary access to their property by a private landowner located south of Airport Road Gates la and lb until the New Road was built in 2008. The trial court found that this route led to Gate 1 and the bridge over the drainage canal. Mr. Cambre received keys to Airport Road Gates la and lb in April 2007.

Mr. Cambre testified that he was never given a key to Gate 2 even though a parish lock was on the gate. Witnesses testified and the trial court found that Gate 2 was always open. Mr. Cambre further testified that the Parish’s failure to maintain the grass made Gate 2 and its route inaccessible. Mr. Cambre did not testify that he attempted to access Gate 2 and was unable to pass through because it was locked.

Mr. Cambre testified that he did not receive a key that worked on Gate 1 until April of 2010. In contrast, witnesses for the Parish testified that they were provided a key to Gate 1, but the gate was often left open.

Mr. Cambre was the only witness to testify that an “old logging road” existed and that appellants should have had access to it, but he testified that the route is now blocked with metal posts and completely overgrown. He could not provide the court with any map or survey that showed the existence of the “old logging road.” The trial judge conducted an on-site visit of the location where Mr. Cambre alleged the “old logging road” existed. The trial judge found that the | ^ground near Gate 3 was “slightly cleared” a few feet east of the gate, but then it became “completely overgrown.” The trial court further found that the “old logging road” was not blocked and in fact did not exist.

The Full Release in Suit No. 2 provided that appellants would have access through currently existing routes such as access via the levee at the end of Airport Road or through alternative routes that may become available in the future. The language provided that appellants would be given access, not that appellants would be given access through a route appellants preferred to the exclusion of another route. The trial court found that appellants were provided with continuous access to Lot 5 at all times through the various available routes, and thus, the Parish did not violate item 2 in the Full Release in Suit No. 2. The trial court is presumed to have denied appellants’ claim regarding rear access to Lot 5 because it was not specifically addressed. When a judgment is silent as to a claim or demand that was litigated, it is presumed to be deemed denied by the trial court. Oreman v. Oreman, 07-296 (La.App. 5 Cir. 10/30/07), 971 So.2d 1149, 1158.

Considering the evidence and testimony, we find that the trial court was not manifestly erroneous or clearly wrong in finding that appellants had access to Lot 5 at all times and further finding that the “old logging road” did not exist. We further find that the trial court denied Mr. Cam-bre’s claim of an access route via Cambre Road to the canal since it is not specifically addressed, and the trial court was not manifestly erroneous in denying this claim. This assignment of error is without merit.

In appellants’ third assignment of error, they contend that the trial court erred in finding appellants failed to mitigate their damages in removing the camps and in allocating fault to them of 75%. Appellants claim that the trial court erred lii.in apportioning the “lion’s share” of fault to appellants for failure to timely remove the camps and then reducing the damages awarded by that percentage of fault.

A trier of fact is vested with great discretion in its allocation of fault. Phipps v. Allstate Ins. Co., 05-651 (La.App. 5 Cir. 2/27/06), 924 So.2d 1081, 1085. Allocation of fault is a finding of fact which will not be reversed absent a finding of manifest error. Id.

The record establishes that the routes used to access the camps are the same as those used to access Lot 5, but require entrance through different gates.

Mr. Cambre testified extensively as to why appellants were unable to timely remove the camps. Mr. Cambre testified that the delay and subsequent damage to the camps was due solely to the fault of the Parish. Mr. Cambre testified that Barry Jacobs and others were able to access the property from November 2006 until closing of the Old Road in February 2007. Subsequent to the Old Road closing and the New Road opening, Mr. Cambre and others were given access to their property by crossing through a private landowner’s property which led to Gate 1 and the bridge over the canal. The trial court found that Mr. Cambre had access to the camps via the alternative route after April 2007.

Mr. Cambre claims that access was denied because he periodically did not have keys to open certain gates. The trial court found that whether Mr. Cambre had keys or not, he was able to access Gates 1 and 3 from November 2006 through February 2007. The trial court further found that while there were some periods of time that appellants were not able to access the camps from November 2006 |1sthrough July 2007, appellants had sufficient access to partially remove the camps to prevent a complete loss.

It is clear that appellants and CRHC have had an acrimonious relationship since the filing of Suit No. 1. The parties have engaged in cutting off each other’s locks, putting on new locks, gluing the locks together, digging trenches in the road, and calling police and having each other arrested. Appellants were initially given until March 31, 2007 to remove the camps in the Full Release, and then an extension of an additional 4 months. Regardless, Mr. Cambre had no problems accessing the property from November 2006 through February 2007, but he failed to remove the camps. Mr. Cambre had only the roof removed from camp # 1 during that time period.

Given the evidence at trial, the trial court’s allocation of fault was neither unreasonable nor manifestly erroneous. We find that the trial court did not err in finding that Mr. Cambre had sufficient access to partially remove the camps to prevent a total loss, and that he failed to remove the camps timely. The trial court was in the best position to weigh the evidence and credibility of the witnesses. We find no error in the trial court’s judgment assessing 75% fault to appellants for the delay and subsequent damages for failure to timely remove the camps. This assignment of error is without merit.

In appellants’ fourth assignment of error, they contend that the trial court erred in determining that the Parish’s expert appraiser’s value was correct in assessing the value of the camps that sustained damage. Expert real estate appraisers for both parties testified as to the value of the loss of the camps and value of any denial of access rights. Appellants’ expert, George Corcoran, was qualified as an expert real estate appraiser. The Parish’s expert, Bennett Oubre, | uwas qualified as a general expert real estate appraiser with considerable experience in the field of evaluation of personal property.

Mr. Corcoran testified he approached the determination of value from a replacement cost point of view. He visited the site and extensively interviewed Mr. Cam-bre. Mr. Corcoran testified that camp 1 (closest to the road) was burned down and camp 2 (set further back on Lot 3) was collapsed, fully deteriorated, and uninhabitable. He conceded that he only viewed camp 2 from twenty to thirty feet away because of its condition. Because of the conditions of the property, he testified that he relied on information given to him from Mr. Cambre as to the condition, materials, and furnishings to help aid in his determination of the value of the camps. When discussing the value for any denial of access rights, Mr. Corcoran acknowledged that he did not see any documentation or evidence showing a right of easement off the bridge. Mr. Corcoran also conceded that during his visit he did not see a road. He relied on the information provided by Mr. Cambre in determining that an access route existed to the rear of Lot 5. Mr. Corcoran valued the camps to be over $76,815.00 total.

Bennett Oubre testified that he used the market approach to determine the value of the camps and the value for any denial of access rights. Mr. Oubre testified that he made an on-site visit to the property, but he utilized Mr. Corcoran’s report for the basis of the condition of the property, the size of the property, photographs of the property, and information provided by Mr. Cambre to determine the values. Mr. Ou-bre valued the camps to be $16,320.00 total.

Mr. Cambre testified that he owned both camps. He further testified that he paid Barry Jacobs $5,000 for camp 1.

The trier of fact is required to assess the credibility of both expert and lay witnesses to determine the most credible evidence. Johnson v. E.I. DuPont deNemours & Co., Inc., 08-628 (La.App. 5 Cir. 1/13/09), 7 So.3d 734, 741, citing Magee v. Pittman, 98-1164 (La.App. 1 Cir. 5/12/00), 761 So.2d 731, 742, writ denied, 00-1684 (La.9/22/00), 768 So.2d 602. Appellate courts apply the manifest error standard in deciding conflicts between expert and lay testimony. Id., citing St. Martinville, L.L.C. v. Louisiana Tax Commission, 05-457 (La.App. 1 Cir. 6/10/05), 917 So.2d 38, 44. The reviewing court must determine not whether the factfinder was right or wrong, but whether his finding was a reasonable one. Id., citing St. Martinville, 917 So.2d at 44; Stobart, 617 So.2d at 883 (La.1993). See also, Galen-Med, Inc. v. Porter, 05-0788 (La.App. 4 Cir. 3/29/06), 928 So.2d 681, 688-689; State, Dept. of Transp. & Development v. Biscomb, 47,223 (La.App. 2 Cir. 6/20/12), 94 So.3d 193, 197; Goudia v. Mann, 11-960 (La.App. 5 Cir. 5/22/12), 98 So.3d 364; Lasyone v. Kansas City S. R.R., 00-2628 (La.4/3/01), 786 So.2d 682.

Mr. Oubre’s valuation was based upon the market approach and Mr. Corcoran’s valuation was based on a replacement cost approach. Both experts were qualified as expert real estate appraisers, but Mr. Ou-bre was noted to have considerable experience in personal property. Testimony was elicited from several witnesses that the condition of the camps was medium to poor or in deplorable condition, whereas Mr. Cambre and his wife testified that the camps were in good condition. The trial court was in the best position to weigh the credibility of the expert and lay witnesses. We find that the trial court’s reliance on the lower appraisal value given by Mr. Oubre was not manifestly erroneous or clearly wrong. Therefore, this assignment of error is without merit.

In appellants’ fifth assignment of error, they claim that the trial court erred in denying their motion for new trial concerning the issues of bridge ownership and rear access to Lot 5 via Cambre Road and the canal. Specifically, appellants |1ficontend that the evidence and testimony established that the bridge was built by Atlantic Refining Co in 1942 on Cambre property and was maintained by the Cam-bre family or lessees. Mr. Cambre testified that in 1995 when he and his brother sold property to Dutch Bayou, they transferred ownership of the bridge to Dutch Bayou. Mr. Cambre further testified that over the years the Parish disavowed ownership of the bridge. He testified that payment by third parties to the Cambre family for use of the bridge established ownership of the bridge. The Parish in correspondence has now claimed ownership of the bridge, for which Dutch Bayou has not been compensated. Appellants contend that the “taking” of the bridge was claimed in their supplemental and amending petition, yet the judgment was silent as to ownership of the bridge and compensation to appellants for the “taking” of the bridge.

The appellate standard of review of a ruling on a motion for a new trial is whether the trial judge abused his discretion. Woodlands Development, L.L.C. v. Regions Bank, 11-263 (La.App. 5 Cir. 12/28/11), 83 So.3d 147, 153, writ denied, 12-0424 (La.4/9/12), 85 So.3d 704. When a judgment is silent as to a claim or demand that was litigated, it is presumed to be deemed denied by the trial court. Oreman, 971 So.2d at 1158.

There is no evidence to establish a transfer of ownership of the bridge from Atlantic Refining Co. to the Cambre family and then subsequently to Dutch Bayou. The judgment issued by the trial court is silent on the issue of bridge ownership, and therefore we presume that the claim is denied. The trial court did not abuse its discretion in denying the motion for new trial to clarify ownership of the bridge and the claimed “taking” of the bridge.

In their motion for new trial the appellants also requested that the trial court declare that, pursuant to the Full Release, appellants had certain rights of ingress 117and egress to the canal at the end of Cambre Road to access the rear of Lot 5. The trial court correctly established the routes to Lot 5. The trial court did not abuse its discretion in denying the motion for new trial to clarify right to rear access to Lot 5 via Cambre Road and the canal. This assignment of error is also without merit.

CONCLUSION:

We do not conclude that the trial judge was manifestly erroneous or clearly wrong in her findings of fact, nor do we find errors of law. For all of the reasons stated, the judgment of trial court is hereby affirmed. All costs are assessed against appellants.

AFFIRMED

      . Dutch Bayou is a corporation owned by the Cambre family. Mr. Cambre bought Lots 2, 3 and Cambre Road from Dutch Bayou on July 9, 1998.

      . The lots originally sold for commercial use to Godchaux Sugars, Inc. in 1942 are now owned by Nature Land Co., L.L.C.

      . The Parish bought lots for public use, such as the lease and construction of the Louisiana National Guard building.

      . This road is referred to by various other names throughout prior litigation and this litigation. It is known as Cambre Road, Access Road 2 and Dutch Bayou Road. We refer to this road as Cambre Road.

      . Judgment was rendered by the trial court pursuant to a consent agreement entered into by the parties in Suit No. 1 on April 1, 1998. The judgment was amended November 13, 1998, but does not affect the pertinent language stated above.

      . Dutch Bayou was represented by Mr. Cam-bre in the Full Release in Suit No. 2.

      . It is apparent from the record that use of the word "intervene” by the court and the parties is not limited to a legal intervention pursuant to CCP 1091, but includes the common meaning synonymous with "interfere.”

      . Airport Road Gates la and lb were also referred to as Airport Road Gates 1A and 2A during the trial. We refer to these gates as Gates la and lb.

      . This access route was referred to as the "Partially Completed 2/1/07” Road during the trial.

      . Mr. Cambre submitted an old lease to show that a timber company had previously used the “old logging road” to haul timber. He failed to provide conclusive evidence that the "old logging road” existed and that he used it to access Lot 5. The Parish denied the existence of the road which was supported by other witness testimony.

      . The appellants also claim that the failure to mitigate is an affirmative defense that must be specifically plead and the Parish did not plead this affirmative defense, rather the trial court applied it sua sponte. We find that the evidence offered by the Parish was not in the form of an affirmative defense. We find that the evidence was offered to refute appellants claim that they were denied access to Lot 5 and to remove the camps. See, Johnsa v. Edwards, 582 So.2d 1280 (La.6/21/91); Guirard v. Pelican Pub. Co., 04-1085 (La.App. 5 Cir. 1/25/05), 895 So.2d 61.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    ROYAL OLDSMOBILE COMPANY, INC. v. HEISLER PROPERTIES, L.L.C.; Succession of William C. Garrett; Debra Garrett Levis and Billie Garrett Semmes, Co-Executrices of the Succession of William C. Garrett; Succession of Frank Dimitri; ABC, Succession Representative of the Succession of Frank P. Dimitri; Josephine Desalvo Dimitri; Succession of Joseph Dimitri; Camella M. Dimitri, Executrix of the Succession of Joseph Dimitri, and Josephine Virga Dimitri.
    No. 12-CA-608.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Frank A. Tessier, Matthew J. Fantaci, Attorney at Law, New Orleans, LA, for PlaintifiyAppellee.
    Henry L. Klein, Leonard L. Levenson, Colleen B. Gannon, Christian W. Helmke, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   FREDERICKA HOMBERG WICKER, Judge.

|sThe question before the Court in this action for specific performance of contract and other relief is whether plaintiff has the right to purchase a half interest in the land it leased pursuant to a condition in that lease. The trial court granted plaintiff specific performance, finding plaintiff “is entitled to exercise its right of first refusal” to buy the half interest in its leased-land for the amount of $63,600. The trial court further ordered defendants to transfer all of their right, title, and interest in this land to plaintiff upon plaintiffs tender of this amount. Defendants appeal this judgment. Appellants argue the trial court erred because: it did not clearly reject each of defendants’ arguments; plaintiff lost its right of first refusal because it defaulted on its lease obligation; plaintiff never properly exercised its right of first refusal; and the trial court erroneously determined the purchase price to be $63,600. For the following reasons, we find appellants’ arguments to be without merit and therefore affirm the trial court’s judgment.

1 ¿FACTS AND PROCEDURAL HISTORY

Plaintiff, Royal Oldsmobile Company, Inc., leased certain land from its owners. This lease, in addition to giving Royal the right to use the leased-land, gave Royal a right of first refusal allowing Royal to buy the leased-land should its owners, the lessors, ever receive a qualifying offer in writing to buy the land. The lease provided that this right of first refusal would not be triggered by certain intra-family ownership transfers and that Royal would have thirty days to purchase the leased-land after the owner delivered a copy of the offer to Royal’s offices. The lease’s provision’s full text stated,

RIGHT OF FIRST REFUSAL. In the event that the Lessor has a bona fide offer in writing and desires to sell all or any part of the leased premises, the Lesseef, Royal,] shall have the right of first refusal, for a period of thirty (30) days following delivery of a copy of the offer to its offices, to purchase the property for such amounts and upon such terms as the Lessor has an opportunity to sell such property to a third person. Provided, however, the right of first refusal provided for in this paragraph shall not apply to sales or transfers from the present owner to trusts for the benefit or members of the families of such owner, or to corporations, the majority of the voting stock of which is owned by the present owner or members of his family; however, such right of first refusal shall be binding on such transferees in the event the transferees desire to sell all or part of the leased premises, and Lessor agrees that a clause to that effect shall be set forth in any act of transfer of the property to any trust or corporations as set forth above.

The lease was recorded in the public registry.

The lease between Royal and the land’s owners, and subsequent owners, endured for its original term and through several renewed terms. The final renewed term of the lease ended on September 30, 2006. The lease commenced to Rrun on June 29, 1977. In June, 1977, when the lease commenced, the leased-land was co-owned by Frank Dimitri and Joseph Dimitri, 50% to each. Joseph Dimitri’s interest, and whether its transfer to various successors triggered Royal’s right of first refusal, is the subject of this appeal.

In a previous appeal, this Court chronicled how Joseph Dimitri’s interest transferred to Heisler:

After Joseph [Dimitri] died on June 19, 2003, his widow, Josephine Virga Dimi-tri, and the Succession of Joseph Dimitri entered into a cash sale of property on December 11, 2003. They sold, among other pieces of property, Joseph’s undivided half interest in the leased property to Josephine Desalvo Dimitri. On the Same day, December 11, 2003, Josephine Desalvo Dimitri sold, among other pieces of property, the subject property to Heisler.

Royal Oldsmobile, 58 So.3d at 487.

Josephine Virga Dimitri and the Succession of Joseph Dimitri sold the 50% interest in a collection of properties, which included the 50% interest in the leased-land, to Josephine DeSalvo Dimitri pursuant to an “Agreement to Purchase and Sell,” and its Extension. Josephine DeSalvo Dimitri purchased the leased-land, along with other properties, for the price of $838,500. That same day, Josephine DeSalvo Dimitri resold the same leased-land, along with the other properties she Ijiad just bought, to Heisler for the price of $800,000. In neither of these sales were individual prices assigned to the particular properties which were transferred by the sales.

Royal did not know of Josephine DeSal-vo Dimitri’s purchase or subsequent sale of the leased-land at or before the two transactions. Further, Royal was not provided the opportunity to buy the 50% interest in the leased-land prior to the December 11, 2003 sales. The record contains no evidence that Josephine DeSalvo Dimitri ever notified Royal of her offer, purchase, or her subsequent sale of the collection of properties. Heisler first notified Royal of its purchase of the interest in the leased-land in writing in a letter dated March 1, 2004. While Heisler’s letter provided Royal with the Conveyance Book number of the in globo sale of the leased-land and other properties, neither the letter, nor the Conveyance Book record, provided the purchase price for the leased-land by itself. Heisler’s letter told Royal to begin sending rent payments under the lease to Heisler as the new owner. Royal responded to this letter with a letter of its own to Heis-ler, dated March 19, 2004, expressing its desire to exercise its right of first refusal and offering to pay the amount it estimated Josephine DeSalvo Dimitri had paid for the interest in the leased-land, $34,920.42. Acknowledging that this was an estimated purchase price, Royal offered to correct the price paid if it was the wrong amount. Heisler did not recognize Royal’s right of first refusal; instead, Heisler claimed 17Royal owed it back rent payments from a time period before it bought the leased-land.

On May 4, 2004, Royal filed suit against Heisler, and other defendants, seeking to enforce its right of first refusal to buy the leased-land. The trial court entered a judgment in that suit which Royal appealed. In our first ruling on this case, this Court decided that, because the trial court had failed to rule on a variety of issues relating to Heisler, the trial court had not entered an appealable judgment relative to Heisler. Royal Oldsmobile, 58 So.3d at 491. Specifically, this Court found that the trial court had not yet determined whether Royal was in default, the consequences such default would have, and the proper price Royal must pay for the leased-land, if Royal were entitled to buy that land. We therefore concluded that we lacked jurisdiction and dismissed the appeal as it related to Heisler. Id.

In further proceedings, Henry Klein motioned to intervene in this suit. The record shows that on July 11, 2010, Heisler sold to Mr. Klein half of its 50% interest in the leased-land. The trial court granted Mr. Klein’s motion to intervene on July 18, 2011.

On November 30, 2011, the trial court held a trial to determine the merits of the claims between Royal and Heisler and Mr. Klein. At this trial neither party called additional witnesses nor introduced additional evidence. The parties each argued their positions relying upon the witnesses and evidence already presented. ^Heisler and Mr. Klein argued their defenses. They claimed that Royal defaulted after Heisler’s purchase of the leased-land by failing to pay the proper amount of rent. They conceded however that Royal had not been in default on its rent payments before the sale of the leased-land to Heisler.

The trial court ruled upon these remaining claims in its December 6, 2011 judgment in which it ruled that Royal was entitled to specific performance to exercise its right of refusal in the amount of $63,600 and further ordered that when Royal tendered the $63,600 amount, that “Heisler and [Mr.] Klein must transfer all of their right, title and interest in the leased property at issue to Royal.”

ANALYSIS

Appellants, Heisler and Mr. Klein, argue the trial court erred in its December 6, 2011 judgment because: it did not clearly reject each of defendants’ arguments; plaintiff defaulted on its lease obligation; plaintiff never properly exercised its right of first refusal; and the trial court erroneously determined the amount of $63,600. We find each of these arguments to be without merit and address them individually below.

The Judgment And Reasons For Judgment

Appellants now argue that the trial court’s December 6, 2011 judgment improperly failed to address its defenses and give a reasoned analysis. We disagree. Here, both sides proposed findings of fact and then made their respective arguments at trial. After this trial, the trial court entered its judgment on the merits and rendered Findings of Fact and Conclusions of Law in which the court adopted Royal’s proposed findings of fact.

10After the trial court rendered its judgment and Findings of Fact and Conclusions of Law, neither party timely sought additional reasons for judgment pursuant to La. C.C.P. Article 1917. Therefore, appellants waived their right to complain of the trial court’s alleged failure to give a “reasoned analysis” in which it addressed each of appellant’s defenses in ruling on the merits of the case. Bosley v. Hebert, 13313 (La.App. 1 Cir. 5/5/80), 385 So.2d 430. Furthermore, the district court’s judgment and reasons for judgment are two separate and distinct legal documents. Appeals are taken from the judgment, not the written reasons for judgment which form no part of the judgment. Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d 507, 572, reh’g denied (4/29/2011). While appellants complain that the trial court failed to engage in a “reasoned analysis” of each of their defenses, “[a] final judgment need not dispose of all the issues between the parties; all that is required is that it determine issues involved on the merits of the action.” Wellmeyer v. W. Reserve Life Assur. Co. of Ohio, 94-937 (La.App. 5 Cir. 8/30/95), 663 So.2d 745, 746 (citing Landry v. John E. Graham & Sons, 506 So.2d 843, 844 (La.App. 1st Cir.4/14/87)). Conduct that prevents an opposing party from having an opportunity to appear or to assert a defense constitutes a deprivation of the party’s legal rights, and if demonstrated, provides grounds to annul a judgment. Advanta Bank Corp. v. First Mount Zion Baptist Church, 03-732 (La.App. 5 Cir. 12/30/03), 865 So.2d 165, 168. The trial court engaged in no such conduct here. The record reflects that appellants were afforded an opportunity to argue each of their defenses at trial. Appellants also had an opportunity to present to the court their proposed findings of fact pretrial.

When a trial court’s judgment does not address an issue involved in the merits of an action, courts will remand the matter for supplemental findings. Fishbein v. State ex rel. LSU Health Sciences Ctr., 06-0549 (La.App. 1 Cir. 3/9/07), 960 So.2d 67, 75, writ denied, 07-0730 (La.6/22/07), 959 So.2d 495; Dufrene v. Torch, Inc., 98-276 (La.App. 5 Cir. 10/28/98), 720 So.2d 438, 44. Here however, the trial court disposed of the merits of the claim after receiving pleadings and hearing argument on each of appellants’ defenses.

Further, even when a trial court’s reasons do not adequately explain its decision making process, a court of appeal may affirm that trial court’s judgment. See Milton v. Crawford, 98-478 (La.App. 3 Cir. 10/7/98), 719 So.2d 743.

Appellants also complain that the trial court adopted Royal’s Proposed Findings of Fact. In Dufrene v. Willingham, 97-1239 (La.App. 5 Cir. 10/28/98), 721 So.2d 1026, 1029, writ denied, 99-0032 (La.3/12/99), 739 So.2d 212, this Court recognized that even when “a trial judge adopts most or almost all of a party’s suggested reasons for judgment, the reasons and the judgment itself will stand as long as the record supports them.” (citing Lancaster v. Petroleum Corp. of Delaware, 491 So.2d 768, 773 (La.App. 3 Cir.1986).)

Here, the parties were permitted to argue their respective cases, and their defenses. After examining the judgment as well as the trial court’s Findings of Fact and Conclusions of Law, we find that, while the trial court did not specifically address each of appellants’ defenses, it did decide of all issues at trial. Further, we find that the record supports each of the trial court’s findings of fact. Therefore, we find this assignment of error to be without merit.

Default

At trial, defendants admitted Royal was not in default when Heisler bought the interest in the leased-land. Defendants contend however that Royal defaulted after they purchased the leased-land and that therefore, Royal lost its right to exercise its right of first refusal. We disagree. We find that any default by Royal | n after Heisler’s purchase is irrelevant to our consideration because Royal’s right of first refusal was triggered by Heisler’s offer to purchase the land Royal leased.

A suspensive condition creates enforceable obligations when an event, which is uncertain to happen, occurs. La. C.C. art. 1767. A provision in a lease, such as a right of first refusal, allowing the leasee to buy the leased-land upon the occurrence of an uncertain event, is a suspensive condition. Murry v. Murphy, 07-720 (La.App. 3 Cir. 11/21/07), 970 So.2d 700, 702. The right to enforce the obligation does not arise until the fulfillment of the suspensive condition, and the obligation may not be enforced until the condition is met. Hampton v. Hampton, Inc., 97-1779 (La.App. 1 Cir. 6/29/98), 713 So.2d 1185, 1190.

Here, the right of first refusal is a sus-pensive condition in the lease because it provides the lessee (Royal) a right only when an event that is uncertain to happen occurs. That uncertain event is a person offering to buy the leased-land, in whole or in part, when: that person is not a family member, trust, or corporation excluded by the lease; the offer is bona fide and in writing; and when the lessor desires to sell all or any part of the leased-land. Upon the occurrence of this event, Royal immediately gains the right to buy the land it leased. Because Royal’s rights under the lease were created automatically when Heisler offered to buy the leased-land, any subsequent default on the lease by Royal is irrelevant and therefore not considered by this Court.

112Exercise of Right

Heisler further argues that the trial court erred in its judgment because Royal never validly exercised its right of first refusal. Heisler points out that the right of first refusal provision in the lease allows Royal only “(30) days following delivery of a copy of the offer to its offices, to purchase the property for such amounts and upon such terms as the Lessor has an opportunity to sell such property to a third person.” Heisler argues that Royal’s right of first refusal expired under this term because Royal did not purchase the property within the required thirty days after the time it made the offer on the property and gave notice to Royal of the sale. Heisler also contends that Royal did not properly exercise its right of first refusal because it did not comply with the law of tender and deposit. Again, we disagree.

Here, the lease’s right of first refusal provision states that the thirty-day period to buy the property begins to run from the day of “delivery of a copy of the offer to [the lessee’s] offices.” Our review of the record reveals no evidence that a copy of Heisler’s offer was ever delivered to Royal’s offices. Therefore, the lease’s thirty-day period has never commenced and never expired.

Appellants assert the lease’s term, requiring the delivery of the offer, was not triggered because they never made an offer on the leased-land. Appellants contend they came to own the leased-land through an act of sale which transferred a collection of properties in globo, not through an offer particularly for the leased-land.

Appellants’ argument fails on two grounds. First, we find that, before its acceptance, the document which became the act of sale between Josephine DeSalvo Dimitri and Heisler, signed by Heisler, was a qualifying offer that ^triggered Royal’s right of first refusal. Second, Heisler cannot circumvent the right of first refusal simply by purchasing other properties in addition to the leased-land in a sale transaction. To allow such a loophole would render rights of first refusal functionally meaningless. See Gorum v. Optimist Club of Glenmora, 99-1963 (La.App. 3 Cir. 8/30/00), 771 So.2d 690, 695 (finding that a dation en paiement triggered a right of first refusal because it required the same elements as a sale).

Because the words of the lease contract are clear, we may search for no additional meaning. La. C.C. art.2046. Additionally, because we find that no copy of Heisler’s offer to buy the leased-land was delivered to Royal before the December 11, 2003 sale to Heisler, Heisler’s arguments regarding tender and deposit law are irrelevant. See Hertz Corp. v. R & R Properties, L.L.C., 11-50 (La.App. 5 Cir. 12/28/11), 83 So.3d 205, 209, reh’g denied, (1/24/12), writ denied, 12-0438 (La.4/13/12), 85 So.3d 1249. For these reasons, we find this argument by Heisler to be without merit.

Amount

Finally, appellants allege the trial court erroneously determined an amount of $63,600 for Royal’s exercise of its right of first refusal. Appellants argue that the trial court’s determination of this amount is a barred creative exercise and that the trial court should have not allowed specific performance in this case.

Initially, we recognize that the Civil Code permits specific performance of a right of first refusal. La. C.C. art. 2625 states, “A party may agree that he will not sell a certain thing without first offering it to a certain person. The right given to the latter in such a case is a right of first refusal that may be enforced by specific performance.” For a breach of contract granting a right of first refusal, specific | ^performance is the appropriate remedy. Price v. Town of Ruston, 171 La. 985, 132 So. 653 (1931); Culp v. Eagle’s Nest Church Of Monroe, 39-027 (La.App. 2 Cir. 11/19/04), 887 So.2d 743, 748. Specific performance is the preferred remedy in Louisiana, except where “it is impossible, greatly disproportionate in cost to the actual damage caused, no longer in the creditor’s interest, or of substantial negative effect upon the interests of third parties.” Weingarten v. Northgate, 404 So.2d 896, 901 (La.1981). We do not find any of the exceptions apply and therefore find that the trial court did not err in ordering specific performance.

Finally, on the issue of whether the trial court erred in calculating $63,600 as the amount for which Royal is entitled to exercise its right of first refusal, we find that this is a finding of fact subject to review by this court as set out in Minton v. Crawford, 98-478 (La.App. 3 Cir. 10/7/98), 719 So.2d 743, 746.

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)....
The two-part test for an appellate court’s review of facts under a manifest error standard is:
1) The appellate court must find from the record 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 that the finding is not clearly wrong (manifestly erroneous).
Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), citing Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). In essence, this test means a reviewing court must do more than simply review a record for some 1^evidence which supports the trial court’s finding; it must determine that the record, as a whole, establishes the trial court was justified in its conclusions. [Housley v. Cerise, et al., 579 So.2d 973, 976 (La.1991).]

On review of the record before us, we find that the trial court did not manifestly err in this calculation. Evidence introduced by Royal reflects that, on May 14, 2003, pursuant to a U.S. Marshal’s Sale, a 50% interest in the same collection of properties that Josephine DeSalvo Dim-itri sold to Heisler was appraised at $864,500. Further, Royal introduced evidence which showed that the leased-land accounted for approximately 7.95% of the value of this appraised collection of properties.

Royal’s right of first refusal entitled it to buy its leased-land “for such amount and upon such terms as the Lessor has an opportunity to sell such property to a third person.” Here, the record shows that the “Lessor” — now, Josephine DeSalvo Dimi-tri — had such an “opportunity to sell” to Heisler for $800,000.

Heisler introduced no evidence into the first or second trial of this matter upon which the court should have questioned the efficacy of the sale price for the entire group of properties at the U.S. Marshal’s Sale or the 7.95% calculation, nor upon which the court could have calculated the value of the leased-land as an individual parcel in an alternative manner.

For its $800,000 purchase price, Heisler bought a collection of properties which was appraised for $864,500 at the U.S. Marshal’s sale. The trial court’s reasons for judgment show that the trial court applied the leased-land’s proportional value in the U.S. Marshal’s sale, 7.95%, to the sale of the same collection of properties to Heisler for $800,000. We find that based upon the evidence in the record, the trial court reasonably determined that 7.95% of Heisler’s $800,000 purchase price was attributable to the leased-land. Therefore, |1fiwe also find that the trial court was reasonable when it determined that $63,600 of Heis-ler’s sale price was attributable to its purchase of the leased-land and that Royal was entitled to exercise its right of first refusal for that amount. Therefore, this assignment of error has no merit.

CONCLUSION

Because of the foregoing, we affirm the judgment of the trial court.

AFFIRMED

      . The area of the leased-land was Lots 6, 7, 8, 9, and 10, plus 25 ft. x 153 ft., Square 53, of the Shrewsbury Subdivision in the Parish of Jefferson in the State of Louisiana. This property is "bounded by Severn Avenue, Veterans Boulevard, 27th Street and North Hul-len Street.” Royal Oldsmobile Co., Inc. v. Heisler Properties, L.L.C., 10-152 (La.App. 5 Cir. 12/28/10), 58 So.3d 483, 485.

      . The lease was recorded in the public records of Jefferson Parish, Louisiana, as Instrument No. 793814.

      . The lease had a primary term of five years, a first renewal period of five years, a second renewal period of five years, a third renewal period of seven years, and a fourth renewal period of seven years and two months.

      . Frank Dimitri's 50% interest in the leased-land, and whether its transfer to various successors triggered Royal’s right of first refusal, was determined in a previous opinion of this Court, Royal Oldsmobile, 58 So.3d at 490. In that opinion, we described how Frank Dimitri passed his 50% ownership interest in the leased-land to his late wife, Josephine DeSal-vo Dimitri when he died in May of 1993. Id, Josephine DeSalvo Dimitri later transferred that 50% ownership interest to the Succession of William C. Garrett through a foreclosure sale by the U.S. Marshals on October 14, 2003. Id. We held that neither of these events triggered Royal's right of first refusal. Id.

      . The "Agreement to Purchase and Sell” was a written document signed and executed on August 11, 2003. Its extension, which modified its terms, was a written document signed and executed on September 12, 2003.

      . The act of sale transferring ownership from the Succession of Joseph Dimitri and Josephine Virga Dimitri to Josephine DeSalvo Dimi-tri stated that the sale was made, "in consideration of the price and sum of ... $838,500 [dollars.]” $800,000.00 of the purchase price was to be paid in cash at the time of the transfer, with $38,500.00 payable pursuant to a promissory note.

      . The act of sale between Josephine DeSalvo Dimitri and Heisler states that the sale was made, "in consideration of the price and sum of SEVEN HUNDRED THOUSAND AND NO/ 100 ($700,000.00) DOLLARS, and the liquidation of a $100,000 debt at Bank of Louisiana, and other good and valuable consideration.” Also, this sale was for a lump price as no prices were individualized for the particular properties transferred by this sale.
      Further, Heisler admits that Josephine DeS-alvo Dimitri bought this interest pursuant to a prearranged agreement whereby she would serve as a conduit for Heisler to acquire the properties.

      . Both transfers on December 11, 2003 sold a 50% interest in a collection of 55 different immovable properties; the leased-land property at issue here was part of that collection. Despite there being only a single price for this collection of properties, we do not consider this to be a lump sale because of the individual descriptions of these properties in the acts of sale.

      . This suit named several other defendants who are not relevant to our decision on this, the second appeal in this case. For a more complete discussion of the proceedings relative to other defendants and what happened regarding the 50% interest originally owned by Frank Dimitri, see our earlier opinion in this case, Royal Oldsmobile, 58 So.3d at 490.

      . Mr. Klein had previously moved to intervene in this matter on July 2, 2009. In that motion Mr. Klein alleged that by "separate agreement, not recorded, Henry L. Klein is a 50% owner of Heisler Properties, LLC's interest.” The trial court denied Mr. Klein’s July 2, 2009 motion on August 3, 2009. After this, on July 11, 2010, the described act of sale was executed. In this act of sale, Heisler sold half of its 50% interest in the leased-land described in footnote 1, to Henry L. Klein. This sale did not transfer any ownership interest in any of the other properties which had been previously transferred as a collection. Further, Heisler sold this 25% interest in the leased-land to Klein in this act of sale for $10 "and other good an valuable consideration.”

      . On October 17, 2011, the trial court ruled, by motion for partial summary judgment, that Royal was not in default under the Lease prior to the sale to Heisler.

      . See La. C.C. art. 2625 Official Cmt. (c) (The grantor of a right of first refusal is conditionally bound; he need only offer the thing for sale to the promisee if he — the promisor— should decide to make a certain transaction. See 2 Litvinoff, Obligations 188 (1975); Litvi-noff, "Consent Revisited", 97 La.L.Rev., 699, at 753-54 (1987)).

      . See La. C.C. art. 1767 Official Cmt. (f) (“the word 'condition' means some operative fact subsequent to acceptance and prior to discharge, a fact upon which the rights and duties of the parties depend.”)

      . We find that Josephine DeSalvo Dimitri's offer to buy the leased-land on December 11, 2003 did not trigger the lease's right of first refusal because Josephine DeSalvo Dimitri fell into the excluded class of family member. Josephine DeSalvo Dimitri is family under the lease’s right of first refusal provision as she is the former wife of the now deceased original owner Frank Dimitri.

      . Although, Royal received written notice of the sale of its leased-land in Heisler’s letter dated March 1, 2004, that notice was not a copy of the offer. That notice was rather merely Heisler's letter informing Royal that the sale had already occurred.

      . In Anny v. Babin, 12-164 (La.App. 5 Cir. 7/31/12), 99 So.3d 702, 705, writ denied, 12-1972 (La.12/14/12), 104 So.3d 441, this Court deemed an emailed copy of a signed purchase agreement to be an offer that triggered the right of first refusal.

      . See Terrell v. Messenger, 428 So.2d 1241, 1247 (La.App. 3 Cir. 3/9/83), writ denied, 433 So.2d 709 (La.1983) (held that specific performance was the proper remedy when the transferee of an immovable had sufficient notice of the right of first refusal on that immovable by virtue of the right’s presence in the public records). Compare however, Royal Oldsmobile, 58 So.3d at 492, where this Court held that when a right of first refusal is not triggered, there is no right to specific performance.


author: ROBERT M. MURPHY, Judge.

text:
    Allison Malbrough CANNATELLA and Andrew Cannatella, both individually, and Both on Behalf of their Minor Child, Thomas Andrew Cannatella, and Lejeune Claimants, Shirley Crocker Malbrough and Bobby Ray Malbrough, Individually and on Behalf of their minor son, J.R. Malbrough, and Jeannine Malbrough, Garrett Malbrough, Meghan Malbrough, Shirley Crocker, and Cynthia Cannatella, all Individually v. Dr. Christopher COUGLE, and his Employer, Parish Anesthesia and Louisiana Medical Mutual Insurance Company.
    No. 12-CA-610.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Bobby R. Malbrough, Attorney at Law, Kenner, LA, for PlaintiffiAppellee.
    Conrad Meyer, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, LLC, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERTA. CHAISSON, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

| sDefendants/appelIants, the Louisiana Patient’s Compensation Fund and the Louisiana Patient’s Compensation Fund Oversight Board (collectively, “the PCF”), appeal the trial court’s judgment granting summary judgment in favor of plaintiffs/appellees, Allison Malbrough Canna-tella, Andrew Cannatella, both individually and on behalf of their minor child, Thomas Cannatella, and Lejeune claimants, which include the grandparents, aunts, uncles and great-grandmother of Thomas Canna-tella, and against defendants, Dr. Christopher Cougle, Parish Anesthesia, and Louisiana Medical Mutual Insurance Company. For the reasons that follow, we dismiss the instant appeal.

FACTS AND PROCEDURAL HISTORY

Plaintiffs filed a medical malpractice action against Dr. Christopher Cougle, Parish Anesthesia (Dr. Cougle’s employer), and Louisiana Medical Mutual Insurance Company (Dr. Cougle’s professional liability insurer), alleging that Dr. Cougle failed to comply with the appropriate standard of care within the field of anesthesiology during the birth of Andrew and Allison Can-natella’s son, Thomas Cannatella, on May 26, 2010. Plaintiffs contend that both Allison Cannatella and Thomas Cannatella sustained injuries as a result of Dr. Cou-gle’s malpractice.

|4On November 18, 2011, plaintiffs filed a motion for summary judgment against Dr. Cougle, Parish Anesthesia (“PA”) and Louisiana Medical Mutual Insurance Company (“LAMMICO”) as to the following issues: (1) liability and causation; (2) applicability of two medical-malpractice caps; (3) applicability of Lejeune damages; and (4) whether Thomas Cannatella sustained any injury. On March 1, 2012, the trial court granted plaintiffs’ motion for summary judgment, ordering that (1) Dr. Cou-gle’s liability was established; (2) Dr. Cougle’s negligence caused injury to both Allison and Thomas; (3) two medical malpractice caps would be applied; and (4) the issue of Lejeune damages be referred to the merits. Subsequently, Dr. Cougle filed an unopposed motion to amend the March 1, 2012 judgment to designate the judgment as a final judgment. On March 7, 2012, the trial court signed an amended final judgment, granting the same relief as the March 1, 2012 judgment and ordering that the judgment be designated a final judgment under La. C.C.P. art. 1915(B) (hereinafter, “the Judgment”).

After the trial court granted summary judgment in favor of plaintiffs, plaintiffs and defendants, PA, LAMMICO and Dr. Cougle, reached a settlement. On March 29, 2012, plaintiffs filed a petition for court approval of settlement between plaintiffs and defendants. The proposed settlement would release any and all claims of Allison Cannatella for the statutory limit of $100,000 as well as any and all claims of Thomas Cannatella for the statutory limit of $100,000, for a total of $200,000. Within the petition for approval of settlement, plaintiffs also incorporated a Demand for Excess Damages against the PCF and requested a trial to determine the amount of Allison and Thomas Cannatella’s damages in excess of the statutory limit. The court issued a judgment on March 29, 2012, (1) approving [¡¡the proposed settlement; (2) preserving “[a]ll statutory rights of the [PCF] to contest the claims of ALLISON CANNATELLA and THOMAS CANNA-TELLA, at a trial, and for all such other relief to which it is entitled;” (3) deeming the liability of Dr. Cougle and PA for plaintiffs’ injuries/damages “admitted and established;” (4) releasing Dr. Cougle, PA and LAMMICO from further liability to plaintiffs upon payment of settlement funds, but reserving plaintiffs’ rights against the PCF; and (5) naming Dr. Cou-gle and PA as a nominal parties in any action for excess damages. At the same time, plaintiffs also filed a Motion to Dismiss their claims against Dr. Cougle, PA and LAMMICO, which the court granted on the same day.

On April 19, 2012, the PCF filed an answer to plaintiffs’ Petition for Court Approval of Settlement and Demand for Excess Damages. On April 30, 2012, the PCF filed a motion for devolutive appeal from the March 7, 2012 Judgment granting plaintiffs’ motion for summary judgment. This appeal followed.

LAW AND DISCUSSION

On appeal, the PCF raises one assignment of error for our review: (1) the trial court erred by signing the Judgment granting plaintiffs’ motion for summary judgment, finding that Dr. Cougle’s negligence caused Allison and Thomas Canna-tella’s injuries, without limiting that finding of causation to damages in the amount of $100,000. As a result, the PCF seeks a reversal of the Judgment, to the extent that it fails to limit the finding of causation to $100,000 in damages, and requests an amendment of the Judgment to that effect.

Plaintiffs filed a Motion to Dismiss the PCF’s appeal and, in the alternative, answered the appeal with a request for sanctions and summary disposition. | ^Plaintiffs raise several arguments in response to the PCF’s assignment of error. Primarily, plaintiffs contend that the PCF does not have a right to bring this appeal because La. R.S. 40:1299(0(6) of the Louisiana Medical Malpractice Act prohibits appeals from any settlement approved by the court. In addition, plaintiffs argue that the PCF’s grounds for this appeal are unwarranted because the Judgment does not provide, nor can it be inferred, that defendants caused damages in any amount — either below or above $100,000.

The Louisiana Medical Malpractice Act

Under the Louisiana Medical Malpractice Act (“LMMA”), the liability of a single qualified health care provider (“QHCP”) is limited to $100,000 for. a medical malpractice victim’s injury or death. Bijou v. Alton Ochsner Med. Found., 95-3074 (La.9/5/96); 679 So.2d 893, 896; La. R.S. 40:1299.42(B)(2). Any damages in excess of $100,000 shall be recovered from the PCF, but such damages may not exceed $500,000. La. R.S. 40:1299.42(B)(3)(a). Where the QHCP or its insurer have settled a medical malpractice claim for the statutory limit of $100,000, the LMMA expressly provides that the liability of the QHCP is deemed “admitted and established.” Bijou, 679 So.2d at 896; La. R.S. 40:1299.44(C)(5)(e). In other words, payment of $100,000 to a medical malpractice victim by the QHCP or its insurer, “triggers the admission-of-liability provision of La. R.S. 40:1299.44(0(5), so that the only contested issue remaining thereafter between the victim and the Patient’s Compensation Fund is the amount of the victim’s damages in excess of the amount already paid.” McCrory v. Jefferson Parish Hosp. Serv. Dist. No. 2, 96-624 (La.App. 5 Cir. 12/30/96); 686 So.2d 1060, 1063 (citing Stuka v. Fleming, 561 So.2d 1371, 1374 (La.1990)).

Once payment by one health care provider has triggered the statutory admission of liability, the PCF cannot contest that admission. Id. The only issue 17between the medical malpractice victim and the PCF thereafter is the amount of damages sustained by the victim as a result of the QHCP’s admitted malpractice. Id. “Although 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, at the trial against the [PCF], the plaintiff has the burden of proving that the admitted malpractice caused damages in excess of $100,000.” Harrison v. Smith, 02-477 (La.App. 5 Cir. 11/26/02); 832 So.2d 1064, 1070, writ denied, 2003-0380 (La.6/27/03); 847 So.2d 1277 (citing Graham v. Willis-Knighton Med. Ctr., 97-0188 (La.9/9/97); 699 So.2d 365).

Analysis

The PCF’s issue on appeal is that the Judgment granting plaintiffs’ motion for summary judgment, as written, could be construed as establishing that Dr. Cou-gle’s malpractice caused all of plaintiffs’ injuries such that Dr. Cougle is liable for all of plaintiffs’ damages, leaving the PCF unable to contest causation of damages above the $100,000 statutory limit; in effect potentially assessing damages in excess of $100,000. Under Louisiana’s Medical Malpractice Act, the only issues before the trial court in plaintiffs’ motion for summary judgment against Dr. Cougle, PA and LAMMICO were the negligence of Dr. Cougle and causation for, and damages up to the $100,000 statutory limit. Causation for, and damages above $100,000 are issues which, pursuant to clearly established law, were simply not before the trial court in the summary judgment proceeding at issue. Therefore, we find no merit in the PCF’s contention that the Judgment granting plaintiffs’ motion for summary judgment precludes the PCF from contesting causation of plaintiffs’ recovery of damages in excess of $100,000 in any way.

^Furthermore, less than one month after the Judgment was issued, the parties settled Allison and Thomas’s claims for $200,000 (two payments of the $100,000 statutory limit applicable to Allison and Thomas’s respective medical malpractice caps), thereby triggering the admission-of-liability provision of La. R.S. 40:1299.44(C)(5)(e). At that point, the liability of Dr. Cougle is deemed admitted and established, and therefore, binding on the PCF and not appealable. As a result, once Dr. Cougle and PA settled for the statutory limit as set forth in La. R.S. 40:1299.44(C)(5)(e), the portion of the Judgment that found Dr. Cougle liable for Allison and Thomas’s injuries became moot. The only contested issue remaining between plaintiffs and the PCF is the amount of damages, if any, in excess of the $100,000 already paid to Allison and Thomas respectively, that were caused by Dr. Cougle’s negligence. In fact, the trial court’s March 29, 2012 judgment approving the settlement confirms this as it clearly provides that “[a]ll statutory rights of the [PCF] to contest the claims of ALLISON CANNATELLA and THOMAS CANNATELLA, at a trial, and for all such other relief to which it is entitled, be and are hereby preserved.”

Since the summary judgment is moot in light of the parties’ settlement for the $100,000 statutory limit and Dr. Cougle’s resulting admitted liability, there is no judgment from which the PCF can appeal. Accordingly, this appeal is dismissed.

Plaintiffs’ Request for Sanctions

Plaintiffs seek sanctions against the PCF under La. C.C.P. art. 868 and La. C.C.P. art. 2164. Because the authority to impose sanctions under La. C.C.P. art. 868 is limited to the trial court, we cannot award sanctions under this article. Hampton v. Greenfield, 618 So.2d 859, 862 (La.1993). An appellate court’s authority to regulate conduct before it is governed by La. C.C.P. art. 2164, which ^provides in pertinent part, “[t]he [appellate] court may award damages for frivolous appeal.” Id. (citing La. C.C.P. art. 2164).

Article 2164 is penal in nature and must be strictly construed. Alombro v. Alfortish, 02-1081 (La.App. 5 Cir. 4/29/03); 845 So.2d 1162, 1170. An appellate court may award damages for frivolous appeal under La. C.C.P art. 2164 “when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that appellant’s counsel does not seriously believe in the position he advocates.” Id. “An appeal is not automatically deemed frivolous simply because it lacks merit.” Id.

After considering the arguments of counsel, we do not find that the present matter meets the requirements of a frivolous appeal, and therefore we decline to award sanctions under La. C.C.P. art. 2164.

CONCLUSION

Accordingly, for the reasons stated herein, the PCF’s appeal is dismissed. Plaintiffs’ request for sanctions is denied.

APPEAL DISMISSED

      . On March 8, 2012, Dr. Cougle filed a motion for new trial on the March 7, 2012 judgment. However, the trial court later declared the motion for new trial moot due to the parties' March 29, 2012 settlement and dismissal of plaintiffs' claims against Dr. Cougle, Parish Anesthesia and Louisiana Medical Mutual Insurance Company.

      . The PCF’s motion for devolutive appeal also seeks review of the March 29, 2012 judgment granting plaintiffs’ motion to dismiss. However, the PCF is not pursuing an appeal from the March 29, 2012 judgment granting plaintiffs’ motion to dismiss in the present appeal.


author: ROBERT A. CHAISSON, Judge.

text:
    Brenda M. DAVIS individually and on behalf of her Minor Daughter, Amaya Davis v. Henry C.J. VOSBEIN and State Farm Mutual Automobile Insurance Company.
    No. 12-CA-626.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Ford T. Hardy, Jr., Amber E. Welch, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Scott A. Cannon, Shannon M. Liver-more, Attorneys at Law, Slidell, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   ROBERT A. CHAISSON, Judge.

[ gThis is an appeal by Brenda Davis from a judgment in her favor and against Henry Vosbein and his insurer, State Farm Mutual Automobile Insurance Co., as a result of an automobile accident. A jury awarded Ms. Davis $9,000 in past medicals, $25,000 in future medicals, and $5,000 for loss of enjoyment of life. It also found her 25% at fault for the accident. For the following reasons, we amend the judgment to award an additional $40,000 for pain and suffering, and we set aside the finding of 25% fault on Ms. Davis’ part, and instead find Mr. Vosbein 100% at fault. In all other respects, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

On July 31, 2010, Henry Vosbein was taking his boat out for a test run. In order to leave his home on Carrie Lane while pulling his 22-foot trailered boat, he had to exit his driveway in the opposite direction of his intended travel, perform a turnaround maneuver at the intersection of Carrie Lane and Geranium Drive, and then proceed back down Carrie Lane in front of his house to reach the Lafitte-Larose Highway. It was while Mr. Vos-bein was attempting this turnaround maneuver that this accident happened.

Mr. Vosbein would normally perform the turnaround maneuver by turning left from Carrie Lane onto Geranium Drive and then stopping once his vehicle and |strailered boat were aligned. He would then back straight across the intersection until his vehicle had completely cleared the intersection, and then turn left back onto Carrie Lane to proceed to the Lafitte-Larose Highway. On the date of this accident, as Mr. Vosbein was backing his vehicle through the intersection, the trim tab on the back of his boat struck the front hood of Ms. Davis’ vehicle, which was stopped on Geranium Drive at its intersection with Carrie Lane.

Ms. Davis filed suit against Mr. Vosbein and his automobile liability insurer, State Farm, alleging that she had suffered a torn rotator cuff and injuries to her cervical spine in the accident. After a trial on the merits, the jury awarded Ms. Davis $9,000 in past medical expenses, $25,000 in future medical expenses, and $5,000 in damages for loss of enjoyment of life. The jury specifically rejected any award for past and future pain and suffering by entering “0” for those items on the jury interrogatory form. It also found Ms. Davis 25% at fault in causing the accident. Judgment was entered in accordance with the jury interrogatories, and Ms. Davis now appeals, contending that the jury erred in 1) finding her 25% at fault, and 2) not awarding any damages for past and future pain and suffering. For the following reasons, we agree with both assertions.

LAW AND DISCUSSION

On the issue of allocation of fault, the standard of review is manifest error. O’Riley v. City of Shreveport, 30,107 (La.App. 2 Cir. 1/23/98), 706 So.2d 213, rehearing denied, writ denied, 98-0752 (La.5/1/98), 718 So.2d 418. In Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985), the Court set forth a number of factors to be considered in allocating fault pursuant to La. C.C. art 2323. These are 1) whether the conduct was inadvertent or involved an awareness of the danger, 2) how great a risk was created by the conduct, 3) the significance of what was sought by the conduct, 4) the capacities of the actors, and 5) any extenuating |4factors which might require the actor to proceed with haste, without proper thought.

In the present case, we note that La. R.S. 32:281 provides that “[t]he driver of a vehicle shall not back the same unless such movement can be made with reasonable safety and without interfering with other traffic.” This statute has uniformly been interpreted to impose a high duty of care on the driver of a backing vehicle to ensure that it is safe to do so. See, McDonald v. Hollingsworth, 02-131 (La.App. 5 Cir. 6/26/02), 823 So.2d 408, and cases cited therein. It is evident that Mr. Vos-bein violated this statute.

Mr. Vosbein testified that as he turned left onto Geranium Drive and came to a stop, he did not see any vehicles at the intersection, but that as he was backing up, a white pick-up truck came up to his right on Carrie Lane and stopped at the stop sign. He further testified that he continued backing until he felt resistance, which he compared to backing the boat trailer into soft sand. He admitted to hearing a horn blowing while he was backing, but said that he thought it was the driver of the white truck who was being impatient. After the collision, Mr. Vosbein exited his vehicle and discovered that the trim tab of his boat had run up onto the hood of Ms. Davis’ car on the driver’s side. He testified that he never saw Ms. Davis’ car prior to the collision, apparently because the boat blocked his vision of the road behind him through the rear view mirror, as well as the side mirrors. He said that when he stopped backing up, his vehicle was far enough through the intersection that the white truck was able to pass. A passenger in Mr. Vosbein’s vehicle, Lisa Crabtree, similarly testified that she never saw Ms. Davis’ car until after the collision.

Ms. Davis testified that when she drove up to the stop sign and stopped, she observed the trailered boat across the intersection on Geranium Drive, but it was 15not moving and appeared to be parked. She briefly looked at the driver of the white pick-up truck to her right on Carrie Lane, and when she looked forward, the trailered boat was backing through the intersection toward her. She testified that she sounded her horn, and when the boat came onto the hood of her vehicle on the driver’s side, she ducked down to her right to avoid possibly being struck if the boat came through her windshield. Because Mr. Vosbein and his passenger never saw Ms. Davis’ vehicle before the collision, they are not able to contradict this version of events. The damage to Ms. Davis’ vehicle also supports her testimony on this point.

There is no question that Ms. Davis was stopped at the stop sign for a sufficient amount of time to see Mr. Vosbein backing up and to blow her horn to alert him of her presence. He acknowledged hearing the horn, but thought it came from the truck off to his right side. His statement that he did not see Ms. Davis’ vehicle in his mirrors is at least an implicit admission that the boat blocked his line of vision to the rear to such an extent that it completely obscured an entire automobile. In this circumstance, it is evident that he did not ascertain that the backing maneuver could be undertaken with reasonable safety because he could not tell from his mirrors if anything was on the road behind him. Neither did he take any other precautions, such as putting his passenger on the ground and using her as a lookout, to ascertain if it was safe to back up. Instead, he blindly backed the boat until he felt the resistance of the collision with the car.

In applying the Watson, supra, factors, it is evident that the jury’s attribution of 25% of the fault for this accident to Ms. Davis was manifestly erroneous. The evidence shows unequivocally that Ms. Davis was simply driving down the street, stopped for a stop sign, observed the boat and trailer backing toward her, and sounded her horn in warning to the backing driver. There was absolutely no | ^evidence to establish that she was negligent in any way. In this circumstance, we must set aside the jury finding of 25% negligence on Ms. Davis’ part, and cast Mr. Vosbein with 100% of the fault in this accident.

The second issue concerns the jury’s failure to award general damages for pain and suffering, while awarding $9,000 for past medical expenses and $25,000 for future medical expenses. In Green v. K-Mart Corporation, 03-2495 (La.5/25/04), 874 So.2d 838, the Court summarized the law as to inconsistent verdicts as follows:

The court of appeal stated that, in general, it was legal error for a jury to award special damages for medical expenses while at the same time denying general damages, citing this court’s opinion in Wainwright v. Fontenot, 00-0492 (La.10/19/00) [ (La.10/17/00) ], 774 So.2d 70. However, in Wainwright, this Court also pointed out, that “a jury ... can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compen-sable pain and suffering as the result of defendant’s fault.” Wainwright, 00-0492 p. 8, 774 So.2d at 76; see also Sallinger v. Robichaux, 2000-2269 p. 1 (La.1/5/01), 775 So.2d 437. When, as here, the jury has awarded special damages but has declined to award general damages, the reviewing court must determine whether the jury’s finding “is so inconsistent as to constitute an abuse of discretion.” Wainwright, 00-0492 p. 8-9, 774 So.2d at 76. If so, only then can the reviewing court perform a de novo review of the record. Id.

In the present case, by the time of trial nineteen months after the accident, Ms. Davis had incurred $9,000.00 in medical expenses and was still experiencing problems related to her injuries. The fact that the jury awarded Ms. Davis future medical expenses indicates that the jury believed that she continued to have injuries from the accident that would require further medical intervention. It would be unreasonable to assume that Ms. Davis would undergo a future surgery to correct her shoulder injury in the absence of some degree of continued pain. In these circumstances, there is no question that the failure to award any amounts for pain and suffering, while awarding $9,000 in past medical expenses and $25,000 in |7future medical expenses, is so inconsistent as to constitute an abuse of discretion. Having so determined, our next inquiry is what amount of general damages is reasonable on the record before us.

Ms. Davis denied having suffered any injuries at the scene, and the police report so reflects. However, five days later, on August 5, 2010, she went to Dr. Vincent Michell, a general medical practitioner, with neck and shoulder complaints. Dr. Michell testified that his initial impressions were injuries to the neck and right shoulder. He prescribed anti-inflammato-ries and recommended heat and electrical stimulation for pain. At a second visit, on August 12, Ms. Davis was better but was still complaining of neck and shoulder pains. At a third visit, on September 9, x-rays were done, and an MRI was recommended. The MRI was performed on September 14. These tests revealed degenerative problems in the neck discs, and a tear in the right shoulder rotator cuff. Dr. Michell recommended that she see an orthopaedic surgeon. His opinion was that the accident had caused the rotator cuff tear, but had only exacerbated pre-existing problems in the neck region.

On September 29, 2010, Ms. Davis saw Dr. F. Allen Johnston, a neurosurgeon. Dr. Johnston reviewed the MRI and concluded that there was indeed a rotator cuff tear, as well as findings involving the neck discs at the C3-4, C4-5, and C5-6 levels. It was his opinion that the tear in the rotator cuff was the result of the accident, while the disc problems were probably pre-existing and only exacerbated by the accident. He indicated that Ms. Davis would need arthroscopic surgery to correct the rotator cuff, and that this procedure would cost $25,000. He noted that this one-day outpatient procedure involved making a small incision at the shoulder and inserting instruments to fix the tear. He did not believe that Ms. Davis was a candidate for surgery for the cervical discs, but rather thought that she | swould profit from conservative treatment. He indicated that if surgery were done on the three cervical discs, that procedure would cost above $100,000.

Between October 28, 2009, and January 18, 2012, Ms. Davis was seen twelve times by John D. Olson, who practices in neurology and electrodiagnosis. Dr. Olson’s treatments were directed towards the neck problems, but he did note the shoulder pain on a number of occasions in his reports.

Dr. Terry Habig, of the office of Southern Orthopaedic Specialists, performed an independent medical examination at the request of the defendants. Dr. Habig confirmed the tear in the rotator cuff and attributed this injury to the accident, primarily because Ms. Davis was asymptomatic before the accident and symptomatic afterwards. As to the discs, he noted the C5-6 problem and thought it was a degenerative condition which may have been exacerbated by the accident. He did not find the bulging of the discs at the C3-4 and 4-5 levels to be significant.

There was also cumulative evidence presented to show that Ms. Davis had incurred about $9,000 in medical expenses by the time of trial.

In Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), the Court reiterated the rule that in reviewing damage awards, the appellate courts first look to whether the award is an abuse of the wide discretion of the trier of fact. Once it is determined that there has been an abuse, the appellate courts may then look to awards in similar cases, but may only raise or lower the award to the lowest or highest reasonable award on the record. Because we have determined that there was an abuse of discretion, we now look to other cases involving similar circumstances.

The evidence in the present case established that Ms. Davis more probably than not suffered a rotator cuff tear in the accident, and the jury must have so found 19because it awarded her $25,000 in future medicals, the exact amount that the surgeon said it would cost to surgically repair that damage.

In Angelle v. Delery, 02-0644 (La.App. 5 Cir. 11/26/02), 833 So.2d 469, this Court determined that a general damage award of $50,000 was not abusively low for a plaintiff who suffered a rotator cuff tear which would require future surgery. It must be noted, however, that the holding of the case is not that $50,000 is the lowest award that could be made for a torn rota-tor cuff requiring surgery, but rather that the $50,000 figure was not so low as to constitute an abuse of the trial judge’s discretion. Also, the Court noted that the award under review included “physical and emotional suffering and loss of enjoyment of life.” Id., at 474-5. Finally, it is not clear in Angelle what the nature of the surgery was to be, except for a quote made by the trial judge as to “taking a scalpel to somebody.” Here, the surgeon testified that the surgery would be a one-day outpatient procedure in which only a small incision would be made to introduce other devices to repair the damage.

As to the cervical discs injuries, there was unanimity in the testimony of Ms. Davis’ treating physicians that these problems were probably pre-existing, and were only exacerbated by the accident. Dr. Ha-big, who conducted the independent medical review, was of the opinion that the bulging of two of the discs was of no significance. As to the C5-6, his opinion was that it was pre-existing, but may have been exacerbated in the incident. It was also shown in the records of Dr. Olson, who treated Ms. Davis for over a year, that for the most part she was using only over the counter medications for her neck pain. Thus, the jury could have reasonably found that the problem at C5-6 was the only exacerbation of a pre-existing condition caused by the accident, and moreover that this problem was amenable to relief by non-prescription medication.

hoThe jury made a $5,000 award for loss of enjoyment of life. In this Court’s opinion, an additional $40,000 in general damages is warranted. The total general damage award of $45,000 thus represents the lowest amount that would be reasonable on the record before us, considering both the rotator cuff and disc problems.

CONCLUSION

For the foregoing reasons, the general damage award to Ms. Davis is increased by $40,000. Additionally, the finding that Ms. Davis was 25% at fault is set aside and Mr. Vosbein is adjudged 100% at fault in causing this accident. In all other respects, the judgment is affirmed.

AMENDED AND AS AMENDED, AFFIRMED