author: GARRETT, J.

text:
    Deborah Lee BENTON, Plaintiff-Appellee v. Calvin CLAY, Sr. and Bessie Clay, Defendants-Appellants.
    No. 48,245-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.

      Smith & Nwokorie, LLC by Brian G. Smith, Anselm N. Nwokorie, for Defendants-Appellants, Calvin Clay Sr. and Bessie Clay.

      Hallack Law Firm, West Monroe, LA, by Dennis W. Hallack, William H. Hallack, Jr., for Plaintiff-Appellee, Deborah Lee.
    Hayes, Harkey, Smith & Cascio, Monroe, LA, by Thomas Hayes, III, Clint R. Hanchey, for Third Party Defendant-Ap-pellee, Hudson Lane Title Company, LLC.
    Before WILLIAMS, DREW and GARRETT, JJ.
   GARRETT, J.

_JjIn this case involving the purchase of land, the defendants, Calvin Clay, Sr., and Bessie Clay, appeal from trial court decisions in favor of the plaintiff, Deborah Lee Benton, and the third party defendant, Hudson Lane Title Company, LLC (“Hudson Lane”). The trial court found that Mr. Clay knowingly and intentionally made misrepresentations regarding Ms. Benton’s ability to participate in the land purchase which breached their agreement to purchase the property as co-owners. The trial court granted specific performance in favor of Ms. Benton and awarded her damages and attorney fees. The trial court further ruled that the Clays’ third party demands against Hudson Lane for damages were barred by prescription and that the Clays had no cause of action against Hudson Lane for contribution or indemnity. For the following reasons, we affirm in part and reverse in part the trial court judgments.

FACTS

Ms. Benton and Mrs. Clay were lifelong friends. Ms. Benton’s mother was Mrs. Clay’s godmother. The Clays live near Ms. Benton’s mother in Union Parish. Plum Creek Southern Timber, LLC (“Plum Creek”), owned a 29-acre tract of land adjacent to the property occupied by Ms. Benton’s mother. Plum Creek announced plans to sell this and other property at an auction. Ms. Benton and Mr. Clay were both interested in buying the land. They saw each other at the auction orientation meeting held in June 2007, and agreed to purchase the property together. Because other parties were interested in the tract, they thought they had a better chance of winning the bid if they combined their resources.

|2On June 28, 2007, Ms. Benton and Mr. Clay were successful in submitting the winning bid for the property, $31,900. Hudson Lane, a title company wholly owned by the law firm of Hudson, Potts & Bernstein, LLP, represented Plum Creek at the auction. Stephen North, an attorney for Hudson Lane, and Rita Tucker, a paralegal, handled the paperwork. Hudson Lane had Ms. Benton and Mr. Clay sign a “Purchase and Sale Agreement” with Plum Creek which obligated them to buy the property. They each paid 1/2 of the required $3,190 in earnest money and executed an earnest money deposit escrow agreement. They evidenced their agreement to the form of the non-warranty deed that would be used at closing by initialing a form deed. Hudson Lane set the closing for July 27, 2007. Mr. Clay was to be the contact person for the two buyers and furnished his contact information to Hudson Lane. Correspondence from the title company concerning closing costs was addressed to both Mr. Clay and Ms. Benton and sent to Mr. Clay’s address in Sterling-ton. Mr. Clay realized he would be out of town for a family reunion on the original closing date and requested that the closing be rescheduled. Ms. Benton was never notified of the new date, August 15, 2007.

On July 18, 2007, Ms. Benton received $18,000 from her 401 (k) account to fund her portion of the purchase price and informed Mr. Clay that she had her money. Mr. Clay made arrangements to borrow money from Marion State Bank to fund his part of the purchase price. He sent a |Rloan application to Ms. Benton and suggested that she contact the bank about getting a loan for the purchase. Although Ms. Benton had her funds readily available, she did talk to personnel at the bank and was informed that she did not qualify for a loan.

Ms. Benton alleged that Mr. Clay falsely informed Hudson Lane that she did not have the money to complete the sale of the property and would not be participating in the closing. On August 15, 2007, Mr. and Mrs. Clay appeared at the closing and purchased the property in their names. They borrowed the money for the entire purchase price and executed a mortgage. They then proceeded to have timber cut from the property and received approximately $12,000 from timber sales. They sold dirt from the property and allowed the property to be used for storage purposes. The amounts derived from these activities were never established at trial.

After learning that the Clays had purchased the property, Ms. Benton went to Hudson Lane with her $18,000 check and inquired as to what had transpired. Mr. North advised he was under the impression that Ms. Benton could not afford the property and was not interested in concluding the sale. Mr. North immediately called Mr. Clay and informed him that he needed to come into the office to straighten out the matter. Mr. Clay was noncommittal and nonresponsive. His refusal to resolve the matter amicably resulted in this protracted litigation.

Ms. Benton filed a “Petition for Damages and to Set Aside Sale” against the Clays on April 3, 2008. She sought to rescind the conveyance of |4the property from Plum Creek to the Clays, in order that the property could be conveyed to her and the Clays pursuant to the “Purchase and Sale Agreement,” together with monetary damages. The Clays admitted that the “Purchase and Sale Agreement” had been executed. However, they claimed that Ms. Benton failed to meet the deadline for the scheduled closing and failed to provide her share of the funds for the sale.

On February 7, 2011, after the matter had been set for trial, the Clays filed a pleading entitled “Supplemental Answer: Reconventional Demand and Cross-Claim,” which added an additional party— Hudson Lane. The Clays asserted claims for damages against the title company and also sought contribution and indemnity if judgment was rendered in favor of Ms. Benton and against the Clays. They also asserted a reconventional demand against Ms. Benton for malicious prosecution.

Ms. Benton denied all allegations lodged against her in the new pleadings, urged that the Clays be ordered to convey a 1/2 interest in the property to her, and requested damages, attorney fees, and costs. Hudson Lane filed numerous exceptions, including exceptions of peremption and prescription, no cause of action and no right of action. A motion to sever the trial of the demands between Ms. Benton and the Clays from the Clays’ demands against Hudson Lane was filed by Ms. Benton. She pointed out that the upcoming trial on the main demand had been scheduled as a first |ssetting. She alleged that the Clays filed their demands against Hudson Lane in violation of the scheduling order and as a dilatory tactic. She contended that Hudson Lane’s exceptions could not be disposed of before the trial date and awaiting a ruling on the exceptions would unduly delay the proceedings. Hudson Lane consented to the severance and the trial court granted the motion to sever.

Trial was held in May and September 2011. In detailed written reasons for judgment, the trial court found that Mr. Clay knowingly and intentionally misrepresented to Hudson Lane that Ms. Benton was not able to obtain funds and was not going forward with the transaction. The trial court found that it was uncontrovert-ed that the parties had entered into an agreement to purchase the property jointly. Mr. Clay breached this agreement through his bad faith and fraud and the plaintiff was entitled to specific performance and damages. The trial court signed a judgment in favor of Ms. Benton and against the Clays, for specific performance of the agreement to jointly purchase, in equal portions, an undivided 1/2 interest each in and to the property. The trial court ordered the Clays to do all things necessary to have Ms. Benton recognized as the record owner of a 1/2 interest in the property free and clear of any mortgages, liens, or other encumbrances. All fees, costs, and expenses, including legal expenses were to be borne by the Clays. The judgment ordered Ms. Benton to pay the Clays $15,950 (her 1/2 of the purchase price), subject to a credit for $1,595 previously paid in earnest money, and also subject to a credit for $5,959.26 (1/2 of the $11,918.52 timber sales). Thus, after application of all credits, |(iMs. Benton owed the Clays $8,395.74. The court also awarded Ms. Benton attorney fees in the amount of $8,300. The Clays’ reconven-tional demand against Ms. Benton for malicious prosecution was dismissed with prejudice.

The trial court also considered Hudson Lane’s exceptions. Hudson Lane contended that the Clays’ demands for damages based upon alleged legal malpractice were barred by peremption because they were brought more than three years after the alleged malpractice and the Clays’ other demands for damages were barred by prescription because they were brought more than one year after the alleged tort giving rise to the claim. Hudson Lane further argued that the Clays had no cause of action or right of action for contribution or indemnity. The Clays filed no written opposition to these exceptions and merely presented oral argument. The trial court took the matter under advisement and later issued an extensive oral ruling sustaining some exceptions and finding others to be moot.

The Clays appealed suspensively from the judgment in favor of Ms. Benton and devolutively from the judgment sustaining Hudson Lane’s exceptions. The Clays raise numerous assignments of error.

MISREPRESENTATION

The Clays contend the trial court erred in its factual findings that Mr. Clay knowingly and intentionally misrepresented to Hudson Lane that Ms. Benton did not have the funds to purchase the property and was not going forward with the transaction. They argue Ms. Benton did not prove that the defendants perpetrated a fraud on her and that she did not present any evidence of misrepresentation, suppression, or omission of the truth. They 17deny telling anyone at Hudson Lane that Ms. Benton was not participating in the closing. They claim that Ms. Benton did not prove any intent on their part to obtain an unjust advantage. Indeed, at trial, Mr. Clay maintained that Ms. Benton; her brother, Mr. Lee; Mr. North; and Ms. Tucker were all lying and that he simply had no idea why Ms. Benton was not at the closing.

Discussion

The trial court made very specific and detailed factual findings that the defendants acted in bad faith and in a fraudulent manner. The trial court determined that the plaintiff, her brother, Mr. North, and Ms. Tucker were credible and that the Clays were not.

Under our law, fraud is defined as a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. La. C.C. art.1953; Hibernia Nat’l Bank v. Antonini, 37,836 (La.App. 2nd Cir.12/10/03), 862 So.2d 331; Boudreaux v. Jeff, 2003-1932 (La.App. 1st Cir.9/17/04), 884 So.2d 665. Fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence. La. C.C. art.1957; Boudreaux v. Jeff, supra. Intent to defraud and loss or damage are two essential elements to constitute legal fraud. Boudreaux v. Jeff, supra. Fraud may be predicated on promises made with the intention not to perform at the time the promise is made. Automatic Coin Enter., Inc. v. Vend-Tronics, Inc., 433 So.2d 766 (La.App. 5th Cir.1983), writ denied, 440 So.2d 756 (La.1983). The trial court’s findings with respect to a claim of fraud are subject to the manifest error standard of review. Boudreaux v. Jeff, supra.

The elements of a claim for intentional misrepresentation are: (1) a misrepresentation of a material fact; (2) made with intent to deceive; and (3) causing justifiable reliance with resultant injury. See Kadlec Med. Center v. Lakeview Anesthesia Assocs., 527 F.3d 412 (5th Cir.5/8/08), cert. denied, 555 U.S. 1046, 129 S.Ct. 631, 172 L.Ed.2d 611 (2008).

An obligor is in bad faith if he intentionally and maliciously fails to perform his obligation. La. C.C. art.1997, Revision Comment (b). The term bad faith means more than mere bad judgment or negligence; it implies the conscious doing of a wrong for dishonest or morally questionable motives. Bond v. Broadway, 607 So.2d 865 (La.App. 2d Cir.1992), writ denied, 612 So.2d 88 (La.1993).

It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. See Rosell v. ESCO, 549 So.2d 840 (La.1989). In Welch v. Willis-Knighton Pierremont, 45,554 (La.App.2d Cir.11/17/10), 56 So.3d 242, writs denied, 2011-0075 (La.2/25/11), 58 So.3d 457, and 2011-0109 (La.2/25/11), 58 So.3d 459, this court explained that, to reverse a trial court, the appellate court must find that a reasonable factual basis does not exist in the record for the finding and that the determination is clearly wrong. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Welch v. Willis- Knighton Pierremont, supra. When findings are based on determinations | regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, supra; Audio Plus, Inc. v. Lombardino, 47,488 (La.App.2d Cir.9/20/12), 105 So.3d 725.

Our review of the record fully supports the trial court’s findings that Mr. Clay knowingly and intentionally made misrepresentations, breached the agreement he had made with the plaintiff, and acted in bad faith and in a fraudulent manner. Ms. Benton testified as to the agreement she had with Mr. Clay to purchase the property together. She introduced into evidence the checks she used to pay her portion of the earnest money and the check from her 401 (k) retirement account, demonstrating that she had the funds to complete the sale and corroborating her version as to what occurred. She also introduced into evidence the Purchase and Sale Agreement that she and Mr. Clay jointly executed along with other documents signed that same date. Hudson Lane was to send all communication regarding the closing to Mr. Clay’s address. She became aware that Mr. Clay had a conflict on the original closing date. She was never contacted regarding the new closing date and Mr. Clay would not return her phone calls. When she later spoke to Mr. Clay sometime in August, he denied knowing when the closing would take place, but said he would let her know.

Ms. Benton’s brother, Ralph Lee, corroborated her testimony. He talked with Mr. Clay about the purchase and Mr. Clay knew that Ms. |10Benton had her money for the purchase from her 401(k) retirement account. Despite this knowledge, Mr. Clay left a loan application from his bank at Mr. Lee’s house. Ms. Benton talked to personnel at the bank, but she did not qualify for a loan. Mr. Lee stated that Mr. Clay was concerned that the bank would not extend credit to Ms. Benton, but Mr. Lee and Mr. Clay discussed the fact that Ms. Benton had already obtained her money. Mr. Lee testified that Mr. Clay later told him that the Clays had purchased the entire property. Ms. Benton was then contacted and informed of the sale to the Clays, and her exclusion from the transaction.

Ms. Benton further testified that she went to Hudson Lane and talked to Mr. North. Mr. North told her he was under the impression that she could not afford the property and no longer wanted it. Mr. North immediately called Mr. Clay and asked him to come into the office to resolve the matter, but Mr. Clay refused.

Ms. Benton testified that she went to Mr. Clay’s house and confronted him. Mr. Clay asked her to just give him her check. Ms. Benton, of course, refused because she no longer trusted Mr. Clay. Mr. Clay also told Ms. Benton that his wife would not sign any more documents.

As noted by the trial court, Mr. Clay’s testimony was confusing and self-serving. He admitted that he and Ms. Benton agreed to buy the property together, but that he did not know why Ms. Benton did not appear at the closing. Mr. Clay said that he went to the bank to get a loan and he told the bank to call Hudson Lane. He claimed that someone at Hudson Lane said that Mr. Clay had to pay for the entire property.

|nMr. Clay testified that he did not have Ms. Benton’s telephone number and that Hudson Lane was responsible for contacting her despite the fact that only his address and contact information had been provided to Hudson Lane. Contrary to his position that Ms. Benton could not afford her part, he also testified that he thought that Ms. Benton had already taken her money to Hudson Lane. Mr. Clay contended that, if Ms. Benton had given him her money, or had taken her check to the bank, the bank would have given Ms. Benton her share of the land. Mr. Clay also inexplicably claimed that he left “his loan” open for six months and after that time, he decided that he would not allow Ms. Benton to obtain 1/2 of the property.

Mr. Clay’s confusing testimony was further impeached when he was confronted with an affidavit he executed in May 2008, which was contrary to his testimony at trial.

Ms. Tucker, the paralegal, was present at the auction and the closing. At the auction, Mr. Clay stated that he would be the contact person and Ms. Benton deferred to him. Ms. Tucker said that Mr. Clay later told her that Ms. Benton was not able to get financing for her share of the property and that he and his wife would buy all the land. Ms. Tucker denied that personnel at the bank initially told her that Ms. Benton was not going to purchase her share of the land. Ms. Tucker stated that on August 6, 2007, she talked to someone at the bank who also understood that Ms. Benton would not be purchasing the property. Among the closing documents was an assignment of rights in the Purchase and Sale Agreement from Ms. 112Benton to Mrs. Clay. That document was not executed before the closing, as the Clays indicated they would get it signed.

Mr. North testified that he did not remember talking to Ms. Benton or Mr. Clay prior to the closing. At closing, he gave the assignment of rights in the Purchase and Sale Agreement to the Clays, who told him it would not be a problem to get Ms. Benton to sign the document. After the closing, Ms. Benton came to his office and said that she had her money to purchase the property. Mr. North told Ms. Benton that the title company had been informed that she would not be involved in the closing. Mr. North called Mr. Clay in Ms. Benton’s presence and asked him to come to the office. According to Mr. North, Mr. Clay was not responsive and was noncommittal. Mr. North testified that he never heard from Mr. Clay after that conversation. Mr. North suggested to Ms. Benton that she seek legal counsel.

Mrs. Clay acknowledged that she knew that Ms. Benton and Mr. Clay had agreed to buy the property together. She said that prior to the closing, someone contacted Mr. Clay and told him to bring the entire purchase price to the closing. Mrs. Clay later said that Mr. Clay told her they had to pay the entire purchase price for the property. Mrs. Clay admitted that at the closing, she inquired as to Ms. Benton’s whereabouts, but did not receive an answer.

The trial court noted that Mr. Clay, the designated contact person with Hudson Lane, provided no credible explanation as to why he did not contact Ms. Benton to appear at the closing. The court observed that Mr. 11sClay had not taken any action to honor his agreement with Ms. Benton and did not even return her portion of the earnest money paid to bind the transaction.

The evidence accepted as credible by the trial court clearly establishes an agreement to buy the property jointly and that Mr. Clay was aware that Ms. Benton had the money in hand to complete the purchase. He knowingly and intentionally made misrepresentations to the title company and to the plaintiff. Mr. Clay’s self-serving testimony was nonsensical, inconsistent and contradictory, as noted by the trial court in its reasons for judgment. His credibility was thoroughly impeached.

The trial court found Mr. Clay’s testimony not credible and rejected his contention that everyone else was lying. These findings are not manifestly erroneous or clearly wrong. The trial court correctly found that Mr. Clay knowingly and intentionally misrepresented to Hudson Lane that Ms. Benton was not able to obtain the funds and was not going forward with the transaction and that Mr. Clay acted in a fraudulent manner and in bad faith.

DETRIMENTAL RELIANCE AND SPECIFIC PERFORMANCE

The Clays assert that the trial court erred in ordering specific performance based upon detrimental reliance. They argue that, because the agreement to buy the property together was oral and not reduced to writing, the doctrine of detrimental reliance does not apply. As a preliminary matter, we note that the Clays have completely ignored the portion of the trial court ruling finding that the plaintiff proved a valid, binding agreement which 114was breached by Mr. Clay, thus entitling Ms. Benton to both specific performance and damages. See La. C.C. art.1986. As an alternative basis for recovery, the trial court also found that Ms. Benton had proven all the necessary elements for a claim based upon detrimental reliance. The Clays contend Ms. Benton is not entitled to specific performance because the property has undergone a transformation in value and nature such that it is essentially not the same property and is encumbered by their mortgage. All of these arguments are without merit.

Discussion

Although the trial court expressly found a valid, binding agreement, we will address the Clays’ arguments. La. C.C. art.1967 states:

Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

Detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. To prevail on a detrimental reliance claim, Louisiana law does not require proof of a formal, valid, and enforceable contract. Suire v. Lafayette City-Parish Consol. Gov’t, 2004-1459 (La.4/12/05), 907 So.2d 37; Allbritton v. Lincoln Health Syst., Inc., 45,537 (La.App. 2d Cir.10/20/10), 51 So.3d 91. This is because detrimental reliance is not based upon the intent to be bound. Rather, the basis of detrimental reliance is the idea that a person should not harm another person by making promises that he will not keep. Thus, the focus of analysis of a detrimental reliance claim is not whether the parties intended to perform, but, instead, whether a representation was made in such a manner that the promisor should have expected the promisee to rely upon it, and whether the promisee so relies to his detriment. Suire v. Lafayette City-Parish Consol. Gov’t, supra; Allbritton v. Lincoln Health Syst., Inc., supra.

La. C.C. art.1986 provides:

Upon an obligor’s failure to perform an obligation to deliver a thing, or not to do an act, or to execute an instrument, the court shall grant specific performance plus damages for delay if the obligee so demands. If specific performance is impracticable, the court may allow damages to the obligee.
Upon a failure to perform an obligation that has another object, such as an obligation to do, the granting of specific performance is at the discretion of the court.

Under Louisiana law, specific performance is the preferred remedy for breach of contract. An obligee enjoys the right to demand, insofar as is practicable, the specific performance of the obligation. Charter School of Pine Grove, Inc. v. St. Helena Parish School Bd., 2007-2288 (La.App. 1st Cir.2/19/09), 9 So.3d 209. An obligee has a right to specific performance for breach of contract except when 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. When specific performance is impracticable or when the court, in its discretion, refuses to grant specific performance of an obligation to do, the court may instead fix damages. Charter School of Pine Grove, Inc. v. St. Helena Parish School Bd., supra.

To prevail on a detrimental reliance claim, Ms. Benton was not required to prove a valid, enforceable contract. However, as found by the trial court, she did prove a valid, enforceable contract. There is no dispute that Mr. Clay agreed with Ms. Benton to purchase the property together. Numerous documents were signed by Ms. Benton and Mr. Clay on June 28, 2007, which evidenced their agreement, as noted by the trial court. Ms. Benton justifiably relied on that promise and suffered a change to her detriment because of her reliance. Because of Mr. Clay’s promise, Ms. Benton did not bid on the property solely on her own behalf. Ms. Benton paid her share of the earnest money for the purchase and she withdrew $18,000 from her 401(k) retirement account to cover her portion of the purchase price. Mr. Clay harmed Ms. Benton by making a promise that he did not keep. Ms. Benton was deprived of an undivided 1/2 ownership interest in the property and receiving her share of the proceeds from the timber sales. Based on this record, Ms. Benton proved her claim for L detrimental reliance, in addition to the fact that she proved a valid and enforceable contract.

Furthermore, we reject the Clays’ arguments that the formalities required by La. C.C. art. 2440 are lacking in this case and preclude recovery. The agreement between Ms. Benton and Mr. Clay was not required to be in any particular written form. It was not a transfer of immovable property between Ms. Benton and Mr. Clay as contemplated by La. C.C. art. 1839, which provides in pertinent part:

A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.

Further, their agreement was not a sale or promise of sale of an immovable between Ms. Benton and Mr. Clay as governed by La. C.C. art. 2440, which states:

A sale or promise of sale of an immovable must be made by authentic act or by act under private signature, except as provided in Article 1839.

The parties began with an oral agreement to jointly bid on the property and secure the winning bid. They then memorialized their agreement to co-purchase the property when they jointly executed the Purchase and Sale Agreement with Plum Creek and other documents. Mr. Clay breached this obligation by failing to inform Ms. Benton of the date of the closing and purchasing the entire tract with his spouse. The Clays offered no credible evidence to support their claim that the property had so changed in value and nature that specific performance was not possible. 11sFurther, any changes to the property or encumbrances were caused by the arbitrary actions of the Clays. The trial court did not err in ordering specific performance of the agreement and ordering the Clays to do whatever was necessary to transfer an undivided 1/2 interest in the property to Ms. Benton free of any mortgages, liens, or other encumbrances.

DAMAGES AND ATTORNEY FEES

The Clays maintain the trial court erred in awarding damages and attorney fees to Ms. Benton. They claim that the only possible damage that Ms. Benton suffered was the loss of her earnest money. They urge that when the timber was sold from the property, the land legally belonged to them and they had the right to do whatever they wanted.

Discussion

The record clearly supports the trial court’s award of damages to Ms. Benton for 1/2 of the proceeds from the timber sales. Unfortunately, the record was devoid of sufficient proof to compensate Ms. Benton for the Clays’ dirt sales and storage revenue. Finally, we are constrained to find that the trial court erred in awarding attorney fees to Ms. Benton. La. C.C. art.1958 provides that a party against whom rescission is granted because of fraud is liable for damages and attorney fees. There was no rescission of a contract in this case and thus the provisions on contractual fraud contained in La. C.C. arts.1953-1958, to authorize an award of attorney fees, do not apply. See Boudreaux v. Jeff, supra.

11 ¡As set forth above, the trial court also found that Mr. Clay acted in bad faith. In connection with a bad faith breach of an obligation, La. C.C. art.1997 provides:

An obligor in bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform.

This article does not expressly authorize an award for attorney fees and under the jurisprudence, such an award cannot be made. Sher v. Lafayette Ins. Co., 2007-2441, 2007-2443 (La.4/8/08), 988 So.2d 186.

As a general rule, attorney fees are not allowed in Louisiana except where authorized by a particular statute or provided for by contract. An award of attorney fees is, in essence, a type of penalty. Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382; Deleon v. WSIS, Inc., 31,602 (La.App. 2d Cir.2/26/99), 728 So.2d 1046; Rutherford v. Impson, 366 So.2d 944 (La.App. 1st Cir. 1978), writ denied, 869 So.2d 140 (La.1979). They are not awarded to make the injured party whole, but rather to discourage a particular activity or activities on the part of the other party. Sharbono v. Steve Lang & Son Loggers, supra; Langley v. Petro Star Corp. of La., 2001-0198 (La.6/29/01), 792 So.2d 721.

In the present case, the plaintiff has not established that she was legally entitled to attorney fees by virtue of any statute or contract. Although the record is clear that Mr. Clay’s conduct was both fraudulent and in bad faith, current Louisiana law simply does not allow for an award of attorney fees. Therefore, we are constrained to find that the trial court 18nerred in making an award of attorney fees in this matter. That portion of the trial court judgment is reversed.

INVOLUNTARY DISMISSAL

The Clays claim that the trial court erred in denying their motion for involuntary dismissal. This argument is without merit.

Discussion

La. C.C.P. art. 1672(B) provides:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

La. C.C.P. art. 1672 affords the trial judge discretion to render judgment or to decline to render any judgment until the close of all the evidence. The decision of a trial court denying a motion for involuntary dismissal at the close of the plaintiffs case leaves nothing to review on appeal. See Townsend v. Delchamps, Inc., 94-1511 (La.App. 1st Cir.10/6/95), 671 So.2d 513, writ denied, 95-2648 (La.1/12/96), 667 So.2d 522; Driggers v. Kroger Co., Inc., 29,431 (La.App. 2d Cir.4/4/97), 692 So.2d 1338; Riser v. American Med. Int'l, Inc., 620 So.2d 372 (La.App. 5th Cir.1993); Parker v. Winn-Dixie La., Inc., 615 So.2d 378 (La.App. 5th Cir.1993).

The trial court, in its discretion, denied the motion to dismiss made by the Clays and heard all the evidence presented in the matter before rendering its decision. As set forth above, under these circumstances, where the trial court has denied a motion for involuntary dismissal, there is nothing for review on appeal.

PRESCRIPTION

The Clays argue that the trial court erred in finding that their third party demand against Hudson Lane was barred by prescription. They urge that, in a claim for indemnification based on a tortious act, prescription begins to run when the indemnity claimant suffers the loss or damage. The Clays made a claim for indemnity or contribution against Hudson Lane and they argue that the prescriptive period for this claim did not begin to run until a judgment was entered against them. This argument is without merit.

Discussion

The Clays’ argument reflects that they have both confused and commingled the legal concepts regarding their damage claims and their claim for indemnity or contribution against Hudson Lane. The Clays base their argument on appeal regarding prescription on prior law providing solidary liability for joint tortfeasors and specifying that the time limit for filing a claim for contribution and indemnity by one tortfeasor against another tortfeasor does not begin to run until the party seeking it is cast in judgment. See Bergeron v. Amerada Hess Corp., 478 So.2d 1308 (La.App. 5th Cir.1985). The trial court found that the Clays did not have a cause of action or a right of action against Hudson Lane for indemnity or contribution. In granting Hudson Lane’s exceptions regarding the claim for contribution or indemnity, the trial court correctly noted that Louisiana law regarding the liability of joint tortfeasors has changed. In 1996, the Louisiana legislature amended La. C. C arts. 2328 and 2324. The Louisiana Supreme Court found that this provision abolished solidarity between non-intentional tortfeasors and makes each non-intentional tortfeasor liable only for his own share of the fault, which must be quantified pursuant to La. C.C. art. 2323. Dumas v. State ex rel. Dept. of Culture, Recreation, & Tourism, 2002-0563 (La.10/15/02), 828 So.2d 530. Further, there was no indemnity contract between the Clays and Hudson Lane. Accordingly, the trial court correctly found that the Clays had no cause of action for contribution or indemnity. The Clays have not appealed that portion of the trial court judgment. With no cause of action for contribution or indemnity, the Clays’ argument that the time limit for this claim does not begin to run until the entry of judgment against them is inapposite.

In their third party demand, the Clays also asserted a claim for damages against Hudson Lane. They urged that Hudson Lane was at fault in failing to obtain an assignment from Ms. Benton before the closing, failing to contact Ms. Benton before closing, falsely informing Ms. Benton that the Clays said that Ms. Benton was out of the deal, and for other acts of fault and negligence. They sought damages for emotional distress, mental anguish and aggravation, court costs, attorney fees, and loss of income. The | atrial court correctly reasoned that these damage claims were based in legal malpractice or tort. Regarding the prescriptive period for legal malpractice, La. R.S. 9:5605 provides for one and three year periods.

The closing occurred on August 15, 2007. The Clays did not file their third party demand until February 7, 2011. The Clays’ claims for alleged legal malpractice were clearly prescribed and/or perempted.

The trial court also observed that, under La. C.C. art. 3492, the prescriptive period for fault or negligence claims is one year. Any delictual claim the Clays may have had against Hudson Lane was also prescribed. 124The trial court did not err in finding that the Clays’ claims for damages, against Hudson Lane, however styled, had prescribed.

MOTION TO SEVER

The Clays assert that the trial court erred in granting a motion to sever their claims against Hudson Lane for indemnity or contribution from the claims in Ms. Benton’s main demand. This argument is without merit.

Discussion

As set forth above, the trial court correctly found that the Clays did not have a cause of action against Hudson Lane for indemnity or contribution. This ruling renders moot any argument complaining of the granting of the motion to sever the Clays’ third party demand against Hudson Lane on this issue.

However, we observe that La. C.C.P. art. 1038 provides:

The court may order the separate trial of the principal and incidental actions, either on exceptions or on the merits; and after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other.
When the principal and incidental actions are tried separately, the court may render and sign separate judgments thereon. When in the interests of justice, the court may withhold the signing of the judgment on the action first tried until the signing of the judgment on the other.

The trial judge may order separate trial of the principal and incidental demands in an effort to avoid unnecessary delay. Herb’s Mach. Shop, Inc. v. John Mecom Co., 426 So.2d 762 (La.App. 3d Cir.1983), writ denied, 430 So.2d 98 (La.1983).

12sThe trial court granted Ms. Benton’s motion to sever because to do otherwise would have unnecessarily delayed the proceedings. The Clays did not file their third party demand timely and did not obtain the appropriate court authorization to file their pleading. Hudson Lane then filed numerous exceptions which could not be addressed before the trial date. In December 2010, a scheduling order was filed which set a priority trial date in May 2011, more than three years after the filing of the suit. The trial court acted within its discretion in granting the motion to sever.

CONCLUSION

For the reasons stated above, we affirm those portions of the trial court judgments awarding specific performance and damages to Ms. Benton and dismissing the third party demands by the Clays against Hudson Lane.

We are constrained to reverse that portion of the trial court judgment granting attorney fees to Ms. Benton in the amount of $8,300. Costs in this court are assessed against the defendants, Calvin Clay, Sr., and Bessie Clay.

AFFIRMED IN PART; REVERSED IN PART; RENDERED.

      . The check issued to Ms. Benton by Fidelity Investments actually reflects a taxable distribution in the gross amount of $22,500, with $4,500 deducted for federal tax, leaving a net amount of $18,000 paid to Ms. Benton.

      . The testimony indicated that the majority of the timber money was turned over to Marion State Bank by the Clays to pay on their loan.

      . Rather than a cross claim, the demand against Hudson Lane should have been labeled a third party demand. Hudson Lane was not a party to this suit.

      . Other exceptions included improper cumu-lation of actions, improper venue, no right of action for attorney fees, res judicata, and vagueness. These exceptions are not before the court for consideration in this appeal.

      . Mr. Clay contends that, because the agreement to buy the property jointly with Ms. Benton was not written, the doctrine of detrimental reliance does not apply, citing Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19. However, since the enactment of La. C.C. art. 1967, Louisiana courts have found detrimental reliance to occur despite the fact that an onerous contract may lack a requisite formality such as written execution in authentic form, provided that the requisites of La. C.C. art. 1967 are satisfied. See Dugas v. Guillory, 97-398 (La.App. 3d Cir. 10/7/98), 719 So.2d 719.

      . Ms. Benton urges in her brief that the $8,300 attorney fee award could be "recast” as damages by this court. We are unable to do this. We note it is inequitable that a party can be awarded attorney fees when a contract is rescinded on the basis of fraud (see La. C.C. art. 195 8), but a party who breaches an obligation in bad faith and in a fraudulent manner escapes liability for attorney fees. This is a matter that should be addressed by the legislature.

      . La. R.S. 9:5605 provides in part:
      A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
      B. ... The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
      C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and peremptive period shall be governed exclusively by this Section.

      E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

      . La. C.C. art. 3492 provides in pertinent part:
      Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.

      . The Clays’ brief complains that the motion to sever was filed by Hudson Lane. This is incorrect. The motion to sever was filed by Ms. Benton.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Miriam Stagner UPCHURCH, Amanda Upchurch Caporossi and John David Upchurch, Plaintiffs-Appellees v. STATE of Louisiana through the LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, the City of Shreveport, Austin Bridge & Road, Inc., Unitrin Auto and Home Insurance Company and Rishaida Rochelle Trapani, Defendants-Appellants.
    No. 48,354-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.

      Johnson, Siebeneicher & Ingram, by Michael T. Johnson, Alexandria, LA, David W. Marcase, for Defendant/Appellant, Automobile Club Inter-Insurance.
    J. Patrick Hennessy, Alan Stegall, Shreveport, LA, for Appellees.

      Before BROWN, DREW, and LOLLEY, JJ.
   BROWN, Chief Judge.

11 This is an action for damages arising out of an automobile accident that left plaintiff, Miriam Stagner Upchurch, a quadriplegic. Ms. Upchurch subsequently died three years later as a result of complications arising from her injuries and her children were substituted as party plaintiffs for their mother’s survival action and their own action for damages for her wrongful death. After years of litigation, all defendants except for Automobile Club Inter-Insurance Exchange, Ms. Up-church’s uninsured motorist (“UM”) insurer, resolved all of plaintiffs’ claims against them and were dismissed from this lawsuit. Following trial, the court assessed 90% fault against Ms. Upchurch, who had driven in front of oncoming traffic on Clyde Fant Parkway, and 10% fault against the driver of the other vehicle. As stipulated by the parties, the trial court awarded the UM policy limits of $50,000. Defendant, Ms. Upchurch’s UM insurer, appeals the trial court’s assessment of 10% fault against the other driver. Plaintiffs answer the appeal claiming that the trial court erred in failing to award penalties and attorney fees against the UM insurer for its failure to tender the limits of the UM policy. We affirm.

Facts and Procedural Background

This automobile accident occurred shortly after 5:00 p.m. on April 13, 2006, in Shreveport, Louisiana. On that date, plaintiff, Miriam Stagner | ¡(Upchurch, was driving east on the Shreveport-Barksdale Highway in a 2003 Mitsubishi Lancer. Clyde Fant Parkway is a divided four-lane highway that runs north and south along the Red River and under the Shreveport-Barksdale Highway Bridge. Ms. Up-church took the exit ramp off the Shreveport-Barksdale Highway to the Parkway. Ms. Upchurch intended to turn left/north onto the Parkway. To do so, she had to come to a stop and wait for southbound traffic to clear before crossing the southbound lanes to the neutral ground and then wait for northbound traffic to clear before turning left onto the northbound lanes of the Parkway.

Rishaida Rochelle Trapani was driving south on the Parkway at approximately 60 m.p.h. in a 2005 Toyota 4Runner. The posted speed limit for the area was 55 miles per hour.

Upon reaching the intersection of the exit ramp and the Parkway, Ms. Upchurch came to a stop as required by the posted stop sign. Then, Ms. Upchurch pulled out across the southbound lanes directly in front of the oncoming vehicle owned and operated by Ms. Trapani, who was unable to avoid striking the Upchurch vehicle. Both cars sustained moderate damage. Ms. Upchurch was severely injured and was left a quadriplegic. She died three years later on August 3, 2009.

The record reveals that on the date, time and place of the accident, there were several factors operating to cause greater traffic congestion than normal. Not only was there rush hour traffic, but on that day the Jimmie Davis Bridge that crossed the Red River to the south was also closed, resulting in all of the traffic crossing the Red River between the heavily | ^populated areas of south Shreveport and south Bossier (traffic normally handled by two bridges) being channeled into one location, the Shreveport-Barksdale Highway Bridge. Furthermore, the north span of the Shreveport-Barksdale bridge, which crosses directly over the Parkway, was undergoing construction. In addition, the left lane of the southbound lanes of the Parkway was closed for some distance just prior to the intersection. The construction zone ended immediately before the intersection at which point both southbound lanes were reopened for travel.

At the time of the accident, numerous cars had already lined up behind the stop sign on the exit ramp of the Shreveport-Barksdale Highway waiting to turn left onto the Parkway. In fact, traffic was so heavy that other cars were already in the median of the Parkway waiting to make the same left turn.

The original petition was filed on March 28, 2007. Miriam and her children, Amanda Upchurch Caporossi and John David Upchurch, filed suit against numerous defendants including the DOTD, City of Shreveport, several construction companies and insurance companies, and the other driver involved in the accident.

Immediately after suit was filed, Unit-rin, Ms. Trapani’s liability insurer, tendered its $100,000 policy limits and obtained a release on behalf of its insured. As noted previously, after years of litigation, all other defendants except for Automobile Club Inter-Insurance Exchange, Ms. Upchurch’s UM insurer, resolved plaintiffs’ claims against them and were dismissed from this lawsuit. Automobile Club Inter-Insurance Exchange 14took the position that Ms. Trapani was not negligent in causing the accident and therefore, they did not owe plaintiffs the policy limits of $50,000. Plaintiffs subsequently filed a second supplemental and amending pleading seeking penalties and attorney fees from the UM insurer for its failure to tender payment of the UM limits.

The parties agreed that if any fault was assessed against Ms. Trapani then the full policy limits would apply. The matter was tried as a bench trial on September 27, 2012. In a detailed written opinion issued on October 19, 2012, the trial court found that Ms. Upchurch and Ms. Trapani were both negligent in causing the accident and therefore, plaintiffs were entitled the entirety of the $50,000 policy limits of the Automobile Club Inter-Insurance Exchange’s UM policy held by Miriam Up-church. Specifically, the court found that Ms. Upchurch was 90% at fault and Ms. Trapani was 10% at fault for the accident. The court observed that the dangerous traffic conditions present on the date of the accident were enough to put a reasonably prudent driver on notice that greater care should have been used while driving through the congested area. The court found that at the time of the accident Ms. Trapani failed to uphold her duty to exercise such greater care and was instead driving too fast, being inattentive and apparently oblivious to all the traffic around her. According to the court, had Ms. Tra-pani slowed down and been more attentive to her surroundings the accident could have been mitigated or prevented. Therefore, the court found that her negligent actions also contributed to the accident. The trial court did not discuss the issue of penalties and attorney fees in its opinion, | fibut the issue was addressed in the judgment which was signed by the court on November 8, 2012, awarding plaintiffs the UM policy limits of $50,000, but denying their claim for penalties and attorney fees for arbitrary and capricious conduct by Automobile Club Inter-Insurance Exchange. It is from this judgment that the UM insurer and plaintiffs have appealed.

Discussion

Apportionment of Fault

Defendant, Automobile Club Inter-Insurance Exchange, Ms. Upchurch’s UM carrier, argues that the trial court erred in failing to find that the left-turning driver, plaintiff, Miriam Stagner Upchurch, was 100% at fault for the accident and in assigning 10% fault to defendant, Rishaida Trapani, who as the driver on the favored road had the right-of-way.

Before attempting a left turn, a motorist should ascertain whether it can be completed safely. Theriot v. Lasseigne, 93-2661 (La.07/05/94), 640 So.2d 1305; Slagel v. Roberson, 37,791 (La.App.2d Cir.11/18/03), 858 So.2d 1288, 1290-1291, writ denied, 03-3508 (La.03/12/04), 869 So.2d 824. In a vehicular collision case, there is a presumption of negligence when the other party can prove that the turning motorist executed a left hand turn and crossed the center line at the time of impact. Miller v. Leonard, 588 So.2d 79 (La.1991); Slagel, supra. The burden rests on the motorist who desires to make a left turn to explain how the accident occurred and to show that he or she is free from negligence. Id. See also Mack v. Wiley, 07-2344 (La.App.1st Cir.05/02/08), 991 So.2d 479, writ denied, 08-1181 (La.09/19/08), 992 So.2d 932.

| ^Likewise, jurisprudence has established that an oncoming driver has a right to assume that the left-turning motorist will obey the law in allowing her to continue in her proper lane of travel and will yield to her right-of-way. Cyrus v. U.S. Agencies Insurance Co., 41,826 (La. App.2d Cir.03/14/07), 954 So.2d 261; Sla-gel, supra; Jones v. Lingenfelder, 537 So.2d 1275 (La.App. 2d Cir.1989), writ denied, 539 So.2d 631 (La.1989).

All motorists on Louisiana highways must drive with due regard for the traffic on the highway and have an affirmative duty not to drive faster than is reasonable and prudent under the conditions and potential hazards existing at the time. La. R.S. 32:64(A); Cyrus, supra; Slagel, supra. Thus, notwithstanding the presumption of negligence attributed to a left-turning driver, a favored motorist can still be assessed with comparative fault if her substandard conduct contributed to the cause of the accident. Id.; Terro v. Casualty Reciprocal Exchange, 93-593 (La.App.3d Cir.02/02/94), 631 So.2d 651, writ denied, 94-0522 (La.04/22/94), 637 So.2d 157.

Pursuant to Watson v. State Farm Fire & Casualty Insurance Co., 469 So.2d 967 (La.1985), the trier of fact will compare the relative fault of the parties in the assessment of liability. The amount of fault, if any, attributable to any party, and thus the apportionment of it is a question of fact to be decided by the trier of fact. Underwood v. Dunbar, 628 So.2d 211 (La.App. 2d Cir.1993), writ denied, 94-0026 (La.02/25/94), 632 So.2d 767. A trier of fact’s allocation of fault is subject to the manifest error/clearly wrong standard of review. Hebert v. Rapides Parish Police Jury, 06-2001 (La.04/11/07), 974 So.2d 635; Slagel, supra. The trier of |7fact’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transportation and Development, 617 So.2d 880 (La.1993). The task of the reviewing court is to assess whether the fact finder’s resolution of conflicting evidence was reasonable in light of the record as a whole. Slagel, supra.

In assessing Ms. Upchurch with 90% of the fault, the trial court concluded that her conduct in pulling out onto a busy intersection at Clyde Fant Parkway in rush hour traffic while attempting to cross two southbound lanes in order to make a left turn onto the northbound lanes of the Parkway was negligent and was the predominant cause of the accident in this case. In finding that Ms. Trapani bore 10% of the fault for the accident, the trial court noted the severity of the injuries sustained by Ms. Upchurch, and while opining that perhaps the wreck was unavoidable, the damage could have been less severe had Ms. Trapani not been speeding, inattentive and “apparently completely oblivious to all the other traffic and the dangerous situation [presented by Ms. Upchurch’s ill-advised turning maneuver].”

At trial, the court heard live testimony from: (1) Officer Gerald Fletcher, the investigating officer; (2) plaintiff, Amanda Caporossi; (3) Jacquet Boyd, a passenger in Ms. Trapani’s vehicle; (4) Clint Black, a witness; and (5) Brian Atchley, a witness. Numerous depositions were also entered into the record as exhibits including that of Erica Aucoin, a witness; Officer Christopher Colvin; Christopher Payne; Leigha Lowe; |sMiriam Upchurch; and the video deposition of Ms. Trapani as she had since moved and now resided in Texas.

After considering all of the evidence, the trial court found that there were numerous discrepancies in the testimonies and depositions. Specifically, the court observed that the witnesses disagreed about in which lane Ms. Trapani had been driving and whether or not she had attempted to apply her brakes before the accident. Based on the discrepancies, the trial court relied heavily on the testimony of Brian Atchley, a civil engineer, finding him to be the most credible and observant witness.

At the time of the accident, Atchley was driving immediately behind Ms. Trapani on Clyde Fant Parkway. Atchley testified that on the day of the accident there was an excessive amount of traffic and cars turning without yielding the right of way. In fact, he said that because the traffic was so “alarming and chaotic that day” he began to slow down and take his foot off the accelerator prior to reaching the intersection because he was unsure whether the drivers ahead were going to yield the right of way. The trial court found his actions to be representative of what a reasonable driver would and should have done in the situation and used them as a point of comparison for Ms. Trapani’s actions.

Furthermore, when asked, based on his experience as a civil engineer, whether it would have made a difference had Ms. Trapani been traveling 55 m.p.h. versus 60 m.p.h. and whether Ms. Trapani could have avoided the accident, Atchley testified that the difference of 5 m.p.h. would not have |9made a difference in this scenario. In his opinion, the reaction time would have been the same.

The court also heard testimony from the investigating officer, Gerald Fletcher. In his deposition, Officer Fletcher agreed with Atchley that speed was not a factor in causing this accident. In fact, he said the officers did not even investigate the speed of the Trapani vehicle because it was not considered a cause of this accident. Officer Fletcher also testified that, in his opinion Ms. Upchurch was entirely at fault in causing this accident. The trial court, however, disagreed with Officer Fletcher’s statement as well as his opinion, that the driver with the right-of-way is “always right,” stating that the officer “apparently did not understand Louisiana tort law and comparative fault.”

The court then also heard testimony from witnesses Christopher Payne and Leigha Lowe who both commented on the speed of Ms. Trapani’s vehicle. In fact, the trial court noted that most of the testimony included comments concerning the speed of the Trapani vehicle; all were in agreement that Ms. Trapani was traveling above the speed limit through the intersection. The court also heard testimony from Clint Black and Jacquet Boyd, another witness and Ms. Trapani’s passenger; however, the court gave them little credence, finding that neither remembered much about the accident.

The court then closely analyzed the video deposition of Ms. Trapani, finding serious concerns regarding both her ability to accurately remember what happened the day of the accident, as well as her seemingly agitated | ^demeanor. Specifically, the court noted that Ms. Trapani could not remember where she had eaten although she said she had come from a late lunch before the accident, the fact that in her initial deposition she could not remember driving through a construction zone, which was contradictory to her statement in her later deposition, that she could neither confirm nor deny that she told the officer at the scene she was traveling 60 m.p.h. in a 55 m.p.h. zone, her testimony that she was in the left lane although Brian Atchley who was behind her stated she was in the right hand lane, her denial that the lei hanging from her mirror obstructed her view in any way, and finally, that although she admitted she saw two vehicles pull out in front of her she maintained that there was nothing she could do to avoid them in the road in front of her.

The trier of fact is owed great deference in its allocation of fault and may not be reversed unless clearly wrong. Clement v. Frey, 95-1119, 95-1163 (La.01/16/96), 666 So.2d 607. Like the assessment of damages, fault allocation is a factual determination and the trier of fact, unlike the appellate court, has the benefit of viewing firsthand the witnesses and evidence. Clement, supra. It is the court of appeal’s duty to give deference to the trier of fact.

Having reviewed the evidence in its entirety, and having observed the discrepancies in the witnesses’ testimony referred to by the trial court in its written reasons for judgment, we do not find that the court erred in its allocation of fault in this case.

| ^Penalties and Attorney Fees

Plaintiffs, the children of Ms. Upchurch, have answered the appeal, assigning as error the trial court’s failure to assess penalties and attorney fees against Ms. Upchurch’s UM insurer for its bad faith in its failure/refusal to tender its policy limits.

Louisiana Revised Statute 22:1892 (former La. R.S. 22:658) provides for the imposition of a penalty and an award of attorney fees against an insurer that fails to pay a claim due to its insured within 30 days of receipt of satisfactory proof of loss if said failure is arbitrary, capricious or without probable cause. La. R.S. 22:658 and its predecessor have been found applicable to uninsured motorist claims. Hart v. Allstate Insurance Co., 437 So.2d 823 (La.1983); Delores M. v. Southern Farm Bureau Casualty Insurance Co., 44,883 (La.App.2d Cir.01/06/10), 29 So.3d 654. In order to establish an insured’s legal entitlement to recover under a UM policy, a plaintiff must be able to establish satisfactory proof of loss, which is fault on the part of the uninsured or underinsured motorist which gives rise to damages and the extent of those damages. Hart, supra; Delores M., supra.

In the instant case, we find, as did the trial court apparently from its failure to assess penalties and award attorney fees, that plaintiffs failed to carry their burden of proving that the UM insurer received a “satisfactory proof of loss” of Ms. Upchurch’s UM claim. In order for Ms. Upchurch’s UM coverage to apply, there had to be an assessment of fault on the part of Ms. Trapani, who in this case would be the underinsured motorist whose negligence or percentage of fault would serve to trigger the coverage of Ms. 112Upchurch’s UM policy. While there was no doubt whatsoever that Ms. Upchurch herself bore the majority of the fault for this tragic accident, there was a genuine dispute as to whether Ms. Trapani, the other driver, bore any percentage of the fault, as evidenced by the conflicting witness testimony and evidence in this case.

Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Costs of this appeal are to be assessed against defendant, Automobile Club Inter-Insurance Exchange.

      . The dismissed defendants were Louisiana Department of Transportation and Development; the City of Shreveport; Austin Bridge & Road; Arch Specialty Insurance Company; Protection Services, Inc.; Travelers Property Casualty Company of America; American Guarantee and Liability Insurance Company; Unitrin Auto and Home Insurance Company, as the liability insurer of Rishaida Rochelle Trapani; and Rishaida Rochelle Trapani.


author: PER CURIAM.

text:
    STATE of Louisiana, Appellee v. Antywane Eric WILLIAMS, Appellant.
    No. 48,416-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.
    Rehearing Denied Sept. 19, 2013.
    Teresa Culpepper Carroll, Jonesboro, LA, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Edward Charles Jacobs, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW, and LOLLEY, JJ.
   PER CURIAM.

| ,Antywayne Eric Williams was convicted on August 28, 2012, by the 26th Judicial District Court, Parish of Bossier, State of Louisiana, of one count of attempted aggravated rape in violation of La. R.S. 14:27 and La. R.S. 14:42 and one count of home invasion in violation of La. R.S. 14:62.8. On September 4, 2012, he filed two pro se motions for appeal, and on October 17, 2012, he filed a pro se motion for new trial. The trial court granted one of the defendant’s motions for appeal on October 25, 2012, without having ruled on the motion for new trial and prior to sentencing Williams on November 9, 2012. Williams was sentenced on the attempted aggravated rape charge to 35 years’ imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. On the home invasion charge, he was sentenced to 10 years’ imprisonment at hard labor, with the first five years to be served without benefits, and the sentence was imposed to run concurrently with the first sentence.

The appellate record indicates that the trial court failed to rule on Williams’ motion for new trial before sentencing him, as required by La. C. Cr. P. art. 853. Failure to rule on a motion for new trial prior to sentencing constitutes an error patent and necessitates that the sentence be vacated. State v. Roberson, 44,116 (La.App.2d Cir.01/08/09), 6 So.3d 190, 191; State v. Jackson, 614 So.2d 783 (La.App. 2d Cir.1993). Accordingly, we hereby vacate Williams’ sentences and remand the matter for a ruling on the motion for new trial and resentencing. Once he is resentenced, Williams may file a new motion for appeal of those sentences.

CONVICTION AFFIRMED; SENTENCES VACATED; REMANDED WITH INSTRUCTIONS.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, DREW, and LOLLEY, JJ.

Rehearing denied.

BROWN and WILLIAMS, JJ., would grant rehearing.


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

text:
    Dorothy Lee BURANDT Individually and on Behalf of the Estate of Pauline Singelmann v. PENDLETON MEMORIAL METHODIST HOSPITAL and/or Universal Health Services, Inc. and/or Health-South Corporation and/or Health-South of New Orleans, Inc.
    No. 2013-CA-0049.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 7, 2013.

      Michael Carter Palmintier, deGravelles, Palmintier, Holthaus & Frugé, L.L.P., Baton Rouge, LA, for Plaintiff/Appellant.
    Peter Elliot Sperling, James P. Wal-dron, Frilot L.L.C., New Orleans, LA, for Defendant/Appellee.

      (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

_JjThe plaintiff, Dorothy Lee Burandt, appeals the trial court’s granting of an exception of prematurity in favor of the defendants, HealthSouth Corporation and HealthSouth of New Orleans, Inc. (collectively “HealthSouth”), based upon its determination that the claims brought by Ms. Burandt sound in medical malpractice and, thus, require a prior medical review panel pursuant to the Louisiana Medical Malpractice Act (“LMMA”), La. R.S. 40:1299.41, et seq. For the following reasons, we reverse the trial court’s judgment and remand the matter to the trial court for further proceedings.

Factual and Procedural Background

In this civil action for survival and wrongful death damages, the plaintiff, Dorothy Burandt, contends that her now deceased mother, Pauline Singelmann, while a patient and under the care and supervision of HealthSouth, died in the aftermath of Hurricane Katrina as a result of the negligent and intentional acts of HealthSouth. On 28 August 2006, Ms. Burandt filed suit naming as defendants, Pendleton Memorial Methodist Hospital (“Methodist Hospital”), Universal Health Services, Inc., and/or Universal Health Services Foundation, HealthSouth Corporation and/or HealthSouth of New Orleans, Inc. (collectively | ¡/‘HealthSouth”). In her original petition for damages, Ms. Burandt alleged that her mother, Ms. Singelmann, was admitted to the ICU at Methodist Hospital on 25 July 2005, for the treatment of pneumonia and multiple wounds to both heels, bruises of unknown origin, and shoulder problems. She was then transferred to the long term acute care center within Methodist Hospital that was operated by HealthSouth pursuant to a services agreement.

Ms. Burandt’s petition further alleged that as Hurricane Katrina approached the area, she was advised by staff at Methodist Hospital that the hospital would not evacuate its patients for the storm. In her memorandum in opposition to Health-South’s exception of prematurity, however, Ms. Burandt averred that as the hurricane approached, she was advised by representatives of HealthSouth that they would be evacuating and transferring her mother to their facility in Baton Rouge. Relying on these representations by HealthSouth, Ms. Burandt personally evacuated to the capí-tol city where she believed her mother was being transferred. Once in Baton Rouge, Ms. Burandt contends she learned that her mother had not been evacuated as Health-South represented. Because of the widespread failure in communication systems following the hurricane’s landfall, Ms. Bu-randt was delayed in obtaining any information regarding the condition of her mother. She was advised on 3 September 2005 that her mother may have died, but that her | swhereabouts were unknown. It was not until three months later, on 3 December 2005, that the decedent’s remains were identified at the St. Gabriel Temporary Mortuary.

In her original petition, Ms. Burandt alleged that as the result of the negligent and intentional acts of Methodist Hospital and HealthSouth, her mother sustained severe personal injuries, which caused the decedent undue pain and physical suffering, as well as mental suffering, and ultimately led to her death. Ms. Burandt alleges the fault of HealthSouth in the following non-exclusive respects:

(1) failure to provide appropriate planning and supervision so as to accommodate the decedent’s known conditions within the context of the circumstances described hereinabove;
(2) failure to have an adequate evacuation plan for the decedent; and
(3) failure to perform the non-medical duties owed by them to the decedent.

Ms. Burandt further alleges Health-South committed intentional acts by “having abandoned the decedent while she was still under their control and supervision, though they knew that by their actions and failures to act she was substantially certain to sustain” injury and death.

On 31 January 2007, HealthSouth, a qualified health care provider pursuant to the LMMA, filed a dilatory exception of prematurity to Ms. Burandt’s petition for damages contending that all of the allegations sounded in medical malpractice and, as such, fell within the parameters of the LMMA, requiring review by a medical review panel before commencement of litigation in the state courts. HealthSouth averred that Ms. Burandt’s filing of a claim with the Louisiana Patient’s | .(Compensation Fund (“LPCF”), urging nearly identical allegations only one day after filing the subject suit, bolstered its contention that her claims sound in medical malpractice and not general tort and, as such, her claims should be dismissed as premature.

Three years later, on 1 February 2010, prior to a hearing on HealthSouth’s exception of prematurity, Ms. Burandt filed an amended and supplemental petition asserting additional acts of negligence by the defendants in failing to have a facility available for the transfer of patients and in failing to have in place a plan to transfer patients in the event of mandatory evacuation. Additionally, Ms. Burandt alleged the defendants’ negligence in designing, constructing and/or maintaining a facility in such a manner that the hospital did not have sufficient emergency power to sustain life support systems and which allowed flood waters to enter the structure, thereby endangering the safety of its patients. Ms. Burandt requested that service of the amended and supplemental petition be withheld. The record on appeal reflects no service of Ms. Burandt’s February 2010 amended and supplemental petition on HealthSouth. Consequently, for purposes of HealthSouth’s exception of prematurity currently before us, we treat the amended and supplemental allegations contained therein as having never been filed.

The trial of HealthSouth’s exception of prematurity as to Ms. Burandt’s original petition for damages took place on 11 May 2012. Ms. Burandt opposed HealthSouth’s exception contending that the Louisiana Supreme Court’s decision |fim LaCoste v. Pendleton Methodist Hospital, 07-0008, 07-0016 (La.9/5/07), 966 So.2d 519, controls the outcome of this case. Determining that Ms. Burandt’s negligence and intentional tort allegations were factually distinguishable from those alleged in LaCoste and that they fell within the scope of the LMMA, the trial court ruled from the bench, granting HealthSouth’s exception and dismissing Ms. Burandt’s claims without prejudice as premature. Judgment was signed on 24 May 2012. Ms. Burandt subsequently filed a motion for new trial, which was denied. The instant appeal followed.

Issue Presented for Review

The sole issue we must decide on appeal is whether the claims set forth in Ms. Burandt’s original petition for damages constitute medical malpractice and, thus, fall within the provisions and purview of the LMMA, or whether they sound in general negligence.

Discussion

La. C.C.P. art. 926 provides for the dilatory exception of prematurity, which questions whether the cause of action has matured to the point that it is ripe for | (judicial determination. Williamson, 04-0451, at p. 4, 888 So.2d at 785. An action that is brought before the right to enforce it has accrued is deemed premature. Id. Prematurity is determined by the facts existing at the time the suit is filed. Sevier v. U.S. Fidelity & Guar. Co., 497 So.2d 1880, 1382 (La.1986). Evidence may be introduced to support or controvert the exception when the grounds do not appear from the petition. La. C.C.P. art. 930.

Under the LMMA, a medical malpractice claim against a private qualified health care provider like HealthSouth is subject to dismissal on an exception of prematurity if the claim has not first been presented to a medical review panel. La. R.S. 40:1299.47(A)(1); Williamson, 04-0451 at p. 4, 888 So.2d at 785. The exception is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for decision by a medical review panel before filing suit against the provider. La. C.C.P. art. 926; Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119. The burden of proving prematurity is on the defendant health care provider, who must show that it is entitled to a medical review panel because the allegations of the plaintiffs petition fall with the provisions and purview of the LMMA. Williamson, 04-0451 at p. 4, 888 So.2d at 785; Spradlin, 98-1977 at p. 4, 758 So.2d at 119.

The LMMA and its limitations on tort liability for a qualified health care provider apply only to claims “arising from medical malpractice;” all other tort liability on the part of the qualified health care provider is governed by general tort law. LaCoste, 07-0008, 07-0016, at pp. 6-7, 966 So.2d at 524 (citing Coleman v. Deno, 01-1517, pp. 15-16 (La.1/25/02), 813 So.2d 303, 315, and Williamson v. Hospital Service Dist. No. 1 of Jefferson, 04-0451, at p. 5, 888 So.2d at 786); Montalbano v. Buffman Inc., 11-0753, p. 3 (La.App. 4 Cir. 3/21/12), 90 So.3d 503, 507. We, therefore, conduct a de novo review of the trial court’s grant of the dilatory exception of prematurity because the issue of whether a claim sounds in medical malpractice involves a question of law. Duplessis v. Tulane University, 07-0647, p. 3 (La.App. 4 Cir. 11/21/07), 972 So.2d 387, 389. The LMMA is special legislation in derogation of the general rights available to tort victims and therefore must be strictly construed. La-Coste, 07-0008, at p. 7, 966 So.2d at 524; Montalbano, 11-0753, at p. 3, 90 So.3d at 507. Louisiana courts are charged with interpreting the LMMA and determining whether the alleged delict sounds in general negligence or falls within the purview of the LMMA. LaCoste, 07-0008, at p. 12, 966 So.2d at 527; Montalbano, 11-0753, at p. 3, 90 So.3d at 507. If an ambiguity exists regarding whether or not the alleged tort sounds in medical malpractice, it is to be resolved in favor of the plaintiff. LaCoste, 07-0008, at p. 7, 966 So.2d at 524; Mineo v. Underwriters at Lloyds, London, 07-0514, p. 4 (La.App. 4 Cir. 10/22/08), 997 So.2d 187, 191. To be covered under the LMMA, the negligent act complained of must be related to medical treatment. Richard v. Louisiana Extended Care Centers, Inc., 02-0978, p. 13 (La.1/14/03), 835 So.2d 460, 468.

La. R.S. 40:1299.41 A(8) of the LMMA defines “malpractice” as follows:

[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions Isduring the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or sued on or in the person of a patient.

The LMMA further defines “tort” and “health care” as follows:

“Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.
“Health care” means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components.

See La. R.S. 40:1299.41 A(7) and La. R.S. 40:1299.41 A(9), respectively.

Under the LMMA, “patient” is defined as follows:

“Patient” means a natural person who receives or should have received health care from a licensed health care provider, under a contract, express or implied. [Emphasis supplied.]

See La. R.S. 40:1299.41 A(S). Pursuant to La. C.C. art. 25, a “[n]atural personality ... terminates at death.”

In deciding the matter before us, the Supreme Court’s decision in LaCoste, supra, and two other decisions rendered by this court, namely, Mineo, supra, and Montalbano, supra, are instructive. The plaintiffs in LaCoste brought suit alleging the wrongful death of a ventilator-dependent patient at Pendleton | nMethodist Hospital during the aftermath of Hurricane Katrina. According to the plaintiffs, the decedent’s death occurred as a result of the hospital’s failure to “design, construct, and/or maintain a facility so as to provide sufficient emergency power to sustain life support systems and/or to prevent flood-waters [sic] entering the structure, as well as the result of the failure of the hospital to implement an adequate evacuation plan, to have a facility available for the transfer of patients, and/or to have in place a plan to transfer patients in the event of a mandatory evacuation.” LaCoste, 07-0008, p. 1, 966 So.2d 519, 521. The hospital, a qualified health care provider under the LMMA, filed a dilatory exception of prematurity asserting that the plaintiffs’ claims sounded in medical malpractice, and thus, pursuant to the LMMA, required review by a medical review panel prior to litigating the matter in state court. Id., at p. 3, 966 So.2d at 522. The trial court disagreed and denied the exception. Following review, we reversed the trial court, in part, stating that a determination as to the adequacy of the hospital’s emergency electric-generating equipment, in addition to the decision as to whether or not to evacuate, fell within the purview of the LMMA. Id. at p. 4, 966 So.2d at 523 (LaCoste v. Pendleton Methodist Hosp., L.L.C., 06-1268, pp. 7-8 (La.App. 4 Cir. 12/6/06), 947 So.2d 150, 157).

The Louisiana Supreme Court granted writs for purposes of considering the plaintiffs’ claims, including whether the hospital’s failure to implement an adequate evacuation plan and its decision to “shelter in place” constituted medical malpractice as defined by the LMMA. Employing the six factors set forth in Coleman, 01-1517, pp. 17-18, 813 So.2d at 315-16, the Court analyzed the plaintiffs’ allegations of negligence to determine whether their claims sounded in | inmalpractice and, thus, were subject to initial review by a medical review panel. These factors consist of the following:

(1) Whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;
(2) Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) Whether the pertinent act or omission involved assessment of the patient’s condition;
(4) Whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
(5) Whether the injury would have occurred if the patient had not sought treatment; and
(6) Whether the tort alleged was intentional.

LaCoste, 07-0008, 07-0016, p. 8, 966 So.2d at 524-25. Applying the Coleman factors, the Court determined that the plaintiffs’ allegations of misconduct did not relate to medical treatment or the dereliction of professional medical skill, but rather, related to the deficient design of the hospital, lack of emergency power, failure to implement an evacuation plan, and failure to have a transfer facility for patients. Id. at pp. 9-10, 966 So.2d at 525-26. The Court specified that “reading the plaintiffs’ allegations in light of the strict application of the [LMMA] does not lead to the conclusion that they relate to medicine, medical care, or medical treatment.” Id. at p. 10, 966 So.2d at 526. According to the Court, the plaintiffs’ amended petition failed to allege that “the medical decision by any physician or nurse resulted in the failure to transfer [the] patient and that such failure resulted in her death.” Id. at p. 15, 966 So.2d at 528.

In Mineo, supra, a nursing home resident died at Chateau Living Center during the aftermath of Hurricane Katrina. The decedent’s children brought suit, | T1 alleging that the nursing home’s failure to provide adequate food, water, medicine, medical staff, and emergency power, in addition to its failure to evacuate the residents prior to the storm, constituted negligence. Chateau Living Center excepted to the petition on the grounds that the claims fell within the purview of the LMMA. The trial court granted its exception. On review, relying upon LaCoste, supra, we reversed, in part, finding that the plaintiffs’ claims that the nursing home failed to evacuate the residents and to provide adequate food and water sounded in general negligence and, thus, were not covered by the LMMA. See Mineo, 07-0514, at p. 9, 997 So.2d at 193-94.

In Montalbano, supra, the children of nursing home residents brought wrongful death actions against the nursing home following the residents’ deaths occurring in Hurricane Katrina. The children settled their claims with the nursing home but reserved their rights against the Louisiana Patient’s Compensation Fund (“LPCF”) alleging that the nursing home’s failure to evacuate the residents prior to the hurricane constituted medical malpractice and that the LPCF was liable for sums in excess of those received in settlement. The trial court granted the LPCF’s motion for summary judgment. On appeal, we affirmed, finding that the LMMA did not apply to the children’s claims on the following grounds: any failure by the nursing home to evacuate its facility prior to the hurricane was not related to medical treatment; a determination as to whether the nursing home failed to evacuate or have an adequate evacuation plan did not require expert medical evidence; the decision not to evacuate the residents did not involve an assessment of the respective residents’ conditions; and, the decision not to evacuate the residents did not occur within the context of a physician-patient relationship.

|12Now turning to the claims brought by Ms. Burandt in her original petition against HealthSouth, in the case sub judi-ce, upon applying the Coleman factors, we find that none of the claims made fall under the purview of the LMMA.

(1) Failure to Plan, Supervise and Evacuate

By her first allegation of fault, Ms. Burandt contends that when faced with the circumstances created by the approaching hurricane, HealthSouth failed to provide appropriate planning and supervision in order to accommodate her mother, an acute care patient suffering from pneumonia and other health-related issues. From the record before us, we cannot determine whether HealthSouth’s alleged failure to plan and supervise Ms. Singel-mann was in any way related to her medical treatment or caused by a dereliction of professional skill, or instead, involved administrative deficiencies and a lack of emergency preparedness. Likewise, we are unable to ascertain from the record whether proof of HealthSouth’s alleged failure to plan and supervise will require expert medical testimony in order to determine whether the proper standard of care was breached and/or caused Ms. Sin-gelmann’s purported injuries and subsequent death, or rather, necessitate expert testimony related to emergency preparedness, disaster management, and/or administrative actions/services. The record is devoid of any evidence from which we can determine whether the alleged pertinent acts or omissions involved an assessment of the decedent’s medical condition or were, in fact, extraneous to Ms. Singel-mann’s medical care and more likely involved general administrative failures unrelated to patient-specific care. Similarly, we have no information to show whether HealthSouth’s alleged failure to plan and supervise so as to accommodate Ms. Sin-gelmann’s condition resulting in her injury and death occurred within the context of the physician-patient relationship or was | ^within the scope of the activities for which a hospital is licensed to perform. Further, we are unable to determine from the record whether Ms. Singelmann’s injuries and death would not have occurred had she not been under the care of Health-South. As we stated in Mineo, supra, “more evidence would be necessary to make such a determination.” See Mineo, 07-0514, at p. 7, 997 So.2d at 193.

Regarding whether HealthSouth’s alleged failure to plan and supervise was intentional, the record does not contain sufficient evidence for us to make this determination at this stage of the proceedings. Applying the Coleman factors, we find that HealthSouth has failed to show that Ms. Singelmann’s alleged injuries and subsequent death were related to medical treatment. In the absence of such a showing, and in keeping with the Supreme Court’s pronouncement in LaCoste that any ambiguity as to the scope of the claim against a health care provider should be resolved in favor of the plaintiff and against a finding that the tort sounds in malpractice, we find that Ms. Burandt’s claim that HealthSouth’s failure to provide appropriate planning and supervision to accommodate Ms. Singelmann as the hurricane approached which resulted in her injury and death does not fall under the provisions of the LMMA and that the trial court was incorrect in granting Health-South’s exception of prematurity as to this claim. See LaCoste, 07-0008, at p. 7, 966 So.2d at 524.

(2) Failure to Evacuate

We reach a similar result as to Ms. Burandt’s second allegation that Health-South’s failure to have an adequate evacuation plan resulted in injury and death to her mother. As the entire metropolitan city was under a mandatory evacuation order, HealthSouth’s failure to remove Ms. Singelmann was not treatment related. Everyone was asked to evacuate, not just the sick and the | ^elderly. See Mineo, 07-0514, at p. 9, 997 So.2d at 193. Clearly no expert medical evidence is required to determine that people who did not evacuate for the hurricane would suffer adverse consequences, such as lack of food, water, injury and possibly death. Such consequences occurred in the hurricane affected area even among the general population, who were not seeking medical attention or treatment, or any who suffered any other prior health problems. Mineo, at p. 9, 997 So.2d at 194. Accordingly, we find that any liability resulting from HealthSouth’s failure to have an adequate evacuation plan for Ms. Singelmann falls outside the scope of the LMMA and is not subject to dismissal for prematurity based upon this record.

(3) Failure to Perform Nm-Medieal Duties

Ms. Burandt’s third allegation of negligence is that HealthSouth’s failure to perform the non-medical duties it owed to Ms. Singelmann resulted in her injury and subsequent death. HealthSouth has failed to meet its burden of establishing that this allegation of fault falls within the purview of the LMMA. On its face, the allegation deals with matters unrelated to medical treatment. From the record, no information exists suggesting that expert medical evidence will be needed to determine whether the standard of care was breached, that the pertinent act or omission involved an assessment of Ms. Singelmann’s medical condition, or that the failure to perform these non-medical duties resulting in injury and death occurred in the context of a physician-patient relationship. Insufficient information exists in the record to make a determination as to whether HealthSouth’s alleged failure to perform these non-medical duties it purportedly owed to Ms. Singelmann was intentional. We find that based on the record before us, HealthSouth has failed to carry its burden of proving that this allegation of fault falls within the |1fipurview of the LMMA. The trial court erred in granting HealthSouth’s exception of prematurity as to this claim.

(4) Abandonment

Ms. Burandt alleges that Health-South’s act of abandoning Ms. Singelmann while she was still under their control and supervision rises to the level of an intentional act because HealthSouth knew by their actions or failures to act that she was substantially certain to sustain injury and death. The record before us contains no evidence of an intentional tort on behalf of HealthSouth; all allegations sound in negligence. Based on the unprecedented nature of Hurricane Katrina, we are of the opinion that no human being could have envisioned or anticipated the catastrophic consequences and events that were to occur during its aftermath. Based on the record before us, we conclude that this allegation sounds in ordinary negligence that does not fall within the provisions of the LMMA and is not subject to dismissal for prematurity.

CONCLUSION

Reading Ms. Burandt’s allegations in light of the strict application of the LMMA does not lead to the conclusion that they relate to medicine, medical care, or medical treatment. LaCoste, 07-0008, at p. 10, 966 So.2d at 526. Having applied the Coleman factors to the facts alleged in Ms. Burandt’s original petition, we conclude that the claims as alleged do not fall within the provisions of the | ,fiLMMA. Accordingly, because the claims do not need to be submitted to a medical review panel, we find the trial court erred when it granted HealthSouth’s exception of prematurity. For these reasons, we reverse the judgment of the trial court and remand the matter for further proceedings.

REVERSED AND REMANDED.

      . HealthSouth attached a copy of the services agreement existing between HealthSouth and Methodist Hospital as an exhibit to a reply memorandum it filed in support of its exception of prematurity. The services agreement was not introduced into evidence at the trial of HealthSouth’s exception nor attached to a pleading. See La. C.C.P. art. 852 and 853. Evidence that is not properly and officially offered and introduced cannot be considered on appeal, even if the evidence is physically placed in the record. See, e.g., Jackson v. United Services Auto. Ass'n Cas. Ins. Co., 08-333, p. 5 (La.App. 5 Cir. 10/28/08), 1 So.3d 512, 515. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Id. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. La. C.C.P. art. 2164. Thus, even though the service agreement is physically contained in the record on appeal, we cannot consider it as it was never properly introduced into evidence.

      . Ms. Burandt settled her claims with Methodist Hospital prior to the hearing on the exception of prematurity.

      . On 29 August 2006, Ms. Burandt filed a "Petition to Establish Medical Review Panel” with the LPCF alleging Methodist Hospital and HealthSouth: (1) failed to provide appropriate medical care in the above described emergent circumstances; (2) failed to provide a medically appropriate evacuation plan for the decedent; and (3) failed to generally meet the standard of care required under the circumstances. On 13 September 2006, the LPCF notified counsel for Ms. Burandt of its belief that the allegations contained in the complaint do not fall within the scope of medical malpractice as defined by the LMMA.

      . After the trial court granted HealthSouth’s exception of prematurity dismissing Ms. Bu-randt’s petition without prejudice, but prior to the entry of judgment, on 18 May 2012, Ms. Burandt filed another supplemental and amending petition asserting additional acts of negligence by HealthSouth in failing to have a facility available for transfer of patients, in failing to have in place a plan to transfer patients in the event of mandatory evacuation, and in failing to timely appoint a transportation entity or timely notify a transportation entity of the need to evacuate the decedent. As these allegations were filed subsequent to the trial court’s oral dismissal of Ms. Bu-randt’s claims without prejudice, we conclude that these new allegations are not properly before us on appeal. We distinguish our finding from the Supreme Court’s decision in Williamson v. Hospital Service Dist. No. 1 of Jefferson, 04-0451, pp. 2-3 (La.12/1/04), 888 So.2d 782, 784-85, where the Court allowed the plaintiff, pursuant to La. C.C.P. arts. 1151 and 1155, to file a supplemental and amending petition asserting new allegations one day prior to the hearing on the defendant’s exception of prematurity. The plaintiff's motion to file the supplemental and amending petition was granted by the trial judge with an order signed on the day of the hearing of the exception, thus placing the new allegations before the court for consideration in ruling upon the defendant’s exception of prematurity. In the instant case, Ms. Burandt did not file her amended and supplemental petition until one week after the hearing on the exception and the court’s rendering oral judgment on HealthSouth’s exception, and one day after a written judgment had been submitted for signature.

      . While not in the original petition, in brief Ms. Burandt suggests an alternative theory of intentional tort against HealthSouth based upon abandonment. Specifically, at the heart of Ms. Burandt's allegation is that Health-South could not locate the whereabouts of her mother’s body for three months following the storm. A "patient” is defined under the LMMA, La. R.S. 40:1299.41 A(3), as a “natural person who receives or should have received health care” (emphasis supplied), and pursuant to La. C.C. art. 25, a "[n]atural personality ... terminates at death.” Therefore, by definition, this claim does not fall within the parameters of the LMMA, but sounds in general negligence.