author: ROLAND L. BELSOME, Judge. TOBIAS, J., LOMBARD, J.,

text:
    Alfred DONALDSON, Sr., Individually and as the Administrator of the Estate of his Minor Child, Alfred Donaldson, Jr. v. HUDSON INSURANCE COMPANY; Tango Motor Transit, LLC; Tango Transport, Inc. and Loyd Dollins.
    No. 2012-CA-1013.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 2013.

      Terry Bennett Loup, Katherine E. Pizzi-ni, Morris Bart, P.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Bradford H. Walker, Daniel R. Hynes, Walker Daly, L.L.P., Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   ROLAND L. BELSOME, Judge.

| ] This appeal arises from a jury verdict in favor of the plaintiff, who was injured in a motor vehicle accident. The defendants claim that the trial court erred in excluding their expert witnesses’ testimony and, further, challenge the damages award as excessive. Finding no error in the trial court’s exclusion, we amend the award of past medical expenses and affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Alfred Donaldson, Sr., and his son were injured in an automobile accident on August 10, 2009, when a freightliner truck driven by Loyd Dollins made an illegal right turn from the left lane and struck the plaintiffs vehicle, which was traveling in the right lane. On July 28, 2010, the plaintiff filed a personal injury lawsuit. Mr. Dollins, his employer and owner of the truck, Tango Motor Transit, LLC, and Hudson Insurance Company were named as defendants in the suit.

As the suit and discovery progressed, the plaintiff filed a motion for a Daubert hearing to challenge the testimony of accident-reconstructionist Jeremy Hoffpauir and orthopedic surgeon Dr. J. Monroe La-borde. After a hearing on the ^motion, the trial court excluded the testimony of both of the defendants’ experts. The defendants sought review of the trial court’s ruling; however, this court declined to exercise supervisory jurisdiction over the matter. After trial on the merits, a judgment was rendered in favor of the plaintiff in the amount of $200,000 plus judicial interest from the date of judicial demand and costs.

DISCUSSION

On appeal, the defendants claim the trial court erred by excluding their experts’ testimony.

The Louisiana Code of Evidence allows a witness to qualify as an expert witness by knowledge, skill, experience, training or education. La. C.E. art. 702. The admissibility of expert testimony turns upon whether the trier of fact will be assisted in understanding the evidence or determining a fact in issue. Comment (a) to La. C.E. art. 702.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court established the standards for determining the admissibility of expert testimony. Daubert set forth some non-exclusive factors for courts, as the “gatekeepers,” to consider in making a determination as to whether an expert’s testimony was relevant and reliable. Those factors include but are not limited to: (1) the testability of the technique or scientific theory; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the technique had gained “general acceptance.” Daubert at 593-594, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469.

In Cheairs v. State ex rel. Dept. of Transp. And Dev., 03-680, pp. 1-2 (La.12/3/03), 861 So.2d 536, 538, the Louisiana Supreme Court recognized that |sDaubert addressed only the issue of the reliability of an expert’s methodology and not whether an expert possessed the proper qualifications to testify. The Court, therefore, adopted the three-part inquiry expressed in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir.1998), concluding it “provides more comprehensive guidance to district courts determining the admissibility of expert testimony.” Id., 03-680 at 10, 861 So.2d at 543. Thus, the admission of expert testimony is proper only if all three of the following guidelines are met: (1) the expert is qualified to testify competently regarding the matters he intends to address, (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert, and (3) the testimony assists the trier of fact through the application of scientific, technical or specialized expertise, to understand the evidence or to determine a fact in issue. Id., 03-680 at 9, 861 So.2d at 542 (citing Harcros Chemicals, 158 F.3d at 562).

The defendants assert that the trial court excluded their expert witnesses solely on the basis that the experts were not physically present to testify at the Daubert hearing. That is not supported by the record.

Although the transcript from the Dau-bert hearing reflects that there was an extensive discussion about the absence of the defense’s two expert witnesses, Mr. Hoffpauir and Dr. Laborde, the record clearly indicates that the trial court proceeded with the hearing, using the submitted depositions and arguments of counsel. Specifically, the trial court stated:

Why don’t we do this, [sic] Why don’t we ... proceed on argument, based upon the depositions and your pleadings filed ... And if the burden of proof has not been met, then I will rule accordingly.

14At that point, the plaintiff objected arguing that there was a requirement that the party offering or proffering expert testimony produce their witnesses in open court for examination. He then continued with an argument on the merits.

In his argument, which was substantiated by the depositions admitted at the hearing, the plaintiff noted that, Mr. Hoffpauir did not set forth the methodology he used or testify concerning whether or not his results were peer reviewed or predictable. The court interjected that he also admitted in his deposition that he never performed any mathematical calculations, examined the vehicles, or communicated with the parties.

The plaintiff then explained that Mr. Hoffpauir had never been allowed to testify about “sideswipe” cases, which was the type of collision in this accident. He did not have an opinion as to what “G forces” were sustained or whether injury was possible in this accident. He made no measurements of crush damage, and he did not perform any mathematical calculations relating to the accident. The plaintiff concluded by arguing that Mr. Hoffpauir’s opinion should be excluded for his failure to measure crush damage, and to perform the expected calculations in accordance with the well-accepted methodologies of accident reconstruction.

Next, the plaintiff addressed Dr. La-borde’s opinion. The plaintiff explained that in his deposition, Dr. Laborde acknowledged that his opinion regarding the plaintiff was formed on the strength of Mr. Hoffpauir’s report together with visibly poor photographs, which he reviewed to determine the impact was slight and there should have been no injury. Dr. Laborde agreed that Mr. Hoffpauir was supposed to perform calculations to determine |¡“Delta-V.” He further conceded that injuries to a person’s spine vary depending on the condition of the spine; and since he never physically examined the plaintiff, -he could not determine the condition of the spine at the time of the accident, or thereafter.

Finally, the plaintiff mentioned that Dr. Laborde had been excluded by more than five judges on grounds of being bias. He then concluded his argument after urging the court to exclude both experts in the absence of proof that the methodology used by Mr. Hoffpauir, which Dr. Laborde based his opinion on, was reliable, repeatable, and acceptable under Daubert standards.

The defendants rebutted stating that Mr. Hoffpauir testified that after reviewing the photographs, he determined there was no measurable crush damage by which to perform the mathematical calculations necessary because the accident involved a “sideswipe” impact. When the court expressed concern about the quality of the photographs which Mr. Hoffpauir used to make his determination, the defendants clarified that he had also reviewed the police report and the property damage estimate. They also responded that Mr. Hoffpauir could not talk to the plaintiff without counsel’s permission.

The plaintiff then moved to admit his memorandum and attachments referred to by the court. He again maintained his objection regarding the expert witnesses’ failure to testify at the hearing. The trial court admitted his motion, memorandum, and attachments. After asserting that it had reviewed the memoranda along with the pleadings and attached depositions, and noting that the witnesses were not present, the trial court granted the plaintiffs motion. The written judgment specifically states: “After consideration of the pleadings, the | fimemorandum of counsel, the law, and argument of counsel, and for oral reasons assigned, the Court finds....”

When considering the trial court’s ruling in context with the subject matter of the Daubert hearing, it is clear that the trial court considered the merits of the motion based on the pleadings, depositions, and arguments set forth therein. The court noting on the record that the experts were not present does not establish that that was the court’s sole reason for granting the plaintiffs motion.

An appellate court’s review of a trial court’s decision to allow or exclude expert testimony is conducted under an abuse of discretion standard. Cheairs v. State Dep’t. of Transp. and Dev., 03-680, p. 6 (La.12/3/03), 861 So.2d 536, 541. Since the record reflects that there were issues with the methodology, reliability, and necessity of the expert witnesses, we find that the trial court did not abuse its discretion in excluding the experts’ testimony.

The defendants further argue that the jury’s damages award should be overturned as it is excessive. The jury awarded the plaintiff $125,000 in general damages and $75, 000 in special damages. The defendants assert that the record does not support the general and special damage awards.

It is well-settled that a judge or jury is given great discretion in its assessment of quantum, for both general and special damages. The assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. La. C.C. art. 2324.1; Wainwright v. Fontenot, 00-492, p. 6 (La.10/17/00), 774 So.2d 70, 74.

17As a result of the accident, the forty-three-year-old plaintiff suffered injuries to his neck and spine. These injuries caused chronic radiating pain through the plaintiffs arms and legs, as well as headaches. After the accident, the plaintiffs activities were limited and he could no longer enjoy recreational activities, such as billiards or basketball.

Dr. Jason Kennedy treated the plaintiff for injuries to his neck and back. After several months of chiropractic treatment, the plaintiff obtained an MRI and was referred to neurosurgeon, Dr. Bradley Bartholomew. The MRI revealed that he suffered disc herniation in the cervical and lumbar areas of the spine. Dr. Bartholomew also found that he was suffering from cervical facet syndrome. He was then referred to the office of Dr. Fred DeFran-cesch, a spinal cord injury specialist, where he received injections into his cervical facet which temporarily relieved the pain.

All three doctors testified that the plaintiffs injuries were directly related to the accident. Both Dr. Bartholomew and Dr. DeFrancesch testified that since the plaintiff had relief with the injections, he would be a good candidate for a rhizotomy. Dr. Bartholomew testified that the plaintiff would most likely need the rhizotomy before he dies. Dr. Kennedy also testified that without a procedure, the plaintiff’s pain would continue and he would need chiropractic treatment at least one to two times a month for the rest of his life.

After considering the evidence, the jury awarded the plaintiff $125, 000 in general damages. Notably, this award is consistent with other general damages awards upheld by this Court. See Ruffin v. Burton, 08-893, pp. 9-10 (La.App. 4 Cir.5/27/09), 34 So.3d 301, 305-07, where this Court upheld a general damages award of $125,000 given to a motorist, who was injured when a truck operated by Sewerage and Water Board employee crossed lanes into oncoming traffic and struck her vehicle. The motorist in Ruffin underwent approximately two-and-a-half years of regular treatment for pain associated with her neck and back injuries, and her complaints of shoulder pain included pain that radiated to her neck. Id. Not only did the plaintiff in this case endure years of treatment for neck and back pain, he will likely have to undergo a surgery procedure to find more permanent relief from his pain.

Since there is ample evidence in the record to support the jury’s general damage awards, we cannot find that there was an abuse of discretion. However, we find that the trial court committed manifest error in awarding special damages of past medical expenses.

An appellate court, in reviewing a judge’s factual conclusions with regard to special damages, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong. Kaiser v. Hardin, 06-2092, pp. 11-12 (La.4/11/07), 953 So.2d 802, 810 (per curiam) (citing Guillory v. Ins. Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029). The discretion of the trier of fact to assess special damages is narrower or more limited than the discretion to assess general damages. Greenhead Gun Club, L.L.C. v. City of Shreveport, 40,045, p. 14 (La.App. 2 Cir. 10/12/05), 914 So.2d 62, 71.

^Particularly, defendants contest the past medical expenses award of $25,000, asserting that the plaintiff only offered proof for past medical services in the amount of $19,041. After reviewing the invoices, we find that the fact-finder was clearly wrong in awarding past medical damages beyond the amount supported by the record. We, therefore, reduce the special damage award, for past medical expenses only, from $25,000 to $19,041.

Accordingly, the judgment is affirmed. The award for past medical expenses is amended to $19,041; and the remaining damage awards are affirmed.

AMENDED AND AFFIRMED

TOBIAS, J., concurs in the result and assigns reasons.

LOMBARD, J., dissents.

TOBIAS, J.,

concurs in the result and assigns reasons.

Li respectfully concur in the result reached by the majority that affirms the trial court’s judgment in its entirety, save reducing the award for past medical expenses to $19,041.00. I write separately because I agree in part with certain points contained in the dissent of Judge Lombard.

A Daubert hearing does not require live testimony. Testimony in a deposition may suffice if the expert was adequately cross examined thereat by all parties. In a discovery deposition, the party who intends to rely upon the deposed witness at trial does not necessarily ask many questions, if any at all, intending to ask his/her useful questions at only trial.

In the case a bar, defendant’s counsel did not ask the deposed expert witnesses during the discovery deposition the questions that would ordinarily be necessary to establish the experts’ qualifications and the appropriateness of the experts’ opinions. When these experts were not present at the Daubert hearing and defense counsel sought to rely solely upon their discovery deposition, the court had no way to properly rule upon the motion pending before the court. The court did not, therefore, abuse its discretion in determining the experts unqualified and did not abuse its discretion in excluding the experts at trial.

LOMBARD, J.,

dissents.

Iil disagree with the majority that the record does not support the defendants’ assertion that the trial court excluded their expert witnesses because the -witnesses did not appear at the Daubert hearing. Specifically, the following colloquy took place at the beginning of the motion hearing:

THE COURT: Okay. So our problems with Dr. Laborde and Mr. Hoffpauir are actually the same, that all they looked at were a bunch of grainy photos, and they did no mathematical calculations, there was no scientific work being done, and they just came up with the—
[DEFENDANTS’ COUNSEL]: They looked at the pictures, just as a jury could do, and they are expressing supposed expert opinions. I would point out, Your Honor, I’m somewhat perplexed. This is a Daubert motion, and every time that I have ever filed Dau-bert motions in the past, that the experts were actually called by the persons offering that testimony so we could have an examination as to what they have done and not done. [They] are not here so—
THE COURT: I thought my office had called because I assumed — the reason why I gave this case a special setting was because I thought this was a Dau-bert motion, that the experts would, in fact, be presented to the Court so that the experts could be questioned as to their methodology.
[DEFENDANTS’ COUNSEL]: I did not realize I needed to have them here, Your Honor. I apologize.
| ¿THE COURT: How else are we going to test their methodology?
[DEFENDANTS’ COUNSEL]: It’s all in their deposition. [Plaintiffs counsel] questioned their methodology completely in the actual depositions, and the depositions are attached as exhibits.
⅜ ⅝ ⅜ # ⅝ ⅜
[PLAINTIFF’S COUNSEL]: Your Honor, going back to the merits of the motion, I mean clearly we filed a Dau-bert motion, and if the defendants are not going to produce the experts so the Court can do it, they lose. They have the burden of proof. Without a witness, they can’t carry the burden of proof.

As the hearing continued, the plaintiffs counsel continued to insist that a Daubert hearing required live witnesses, an assumption apparently shared by the trial judge. This assumption was not disputed by the defendants’ counsel who related “I have never had a Daubert hearing, and I didn’t know I had to produce the -witnesses.” Eventually, there was some discussion of the deposition testimony of the two disputed witnesses and the admissibility of such testimony at the end of the discussion the trial court ruled orally, giving the following reason for the judgment granting the plaintiffs motion to exclude the defendants’ expert witnesses:

In reviewing Daubert Foret [sic], its prodigy, the Court notes that the two witnesses, Mr. Hoffpauir, nor [sic] Mr. Laborde, was, in fact, present today at this Daubert hearing. Therefore, the Court is going to grant the Motion in Limine, (emphasis added).

The written judgment signed on January 19, 2012, reiterated that the basis of the ruling excluding the witnesses: “No testimony was proffered at the hearings by Defendants” (emphasis added).

Thus, although there was some discussion as to the admissibility of the testimony of the defendants’ expert witnesses, the trial court did not reference any of that discussion in its reason for judgment. Rather, in both oral and written |sruling, the trial court specifically stated that the basis of the decision to exclude the expert witnesses was them absence from the hearing. This is clear error.

There is no requirement, jurisprudential or otherwise, requiring live testimony at a Daubert hearing. See La.Code Civ. Proc. Art. 1425(F)(2)(“For good cause shown, the court may allow live testimony at the contradictory [Daubert] hearing”). Moreover, the record in this case is unambiguous: the trial court based its decision on the absence of live testimony by the expert witnesses. After explicitly stating this in its oral ruling, the trial court reiterated it in the written judgment. Thus, although a trial court is “accorded broad discretion in determining whether expert testimony should be admissible and who should or should not be permitted to testify as an expert,” Everhardt v. Louisiana Department of Transportation and Development, 07-0981, p. 15 (La.App. 4 Cir. 2/20/08), 978 So.2d 1036, 1048 (citations omitted), that discretion is necessarily premised upon an understanding of the procedural, as well as legal, burdens of the parties. In this matter, although (as the majority recounts) there was some discussion of the deposition testimony pertinent to the witnesses’ qualifications, the entire hearing was framed by the plaintiffs counsel’s misconception that a Daubert hearing required live testimony from the witnesses at issue and the absence of such testimony required the exclusion of their testimony at trial. The trial court clearly shared this erroneous misconception. Moreover, even if the trial court preferred live testimony, the trial court conceded at the hearing that defendants’ counsel was not advised of this preference through either written order or less formal channels.

The majority, however, ignores the fact that the trial court’s only stated reason for judgment, both orally and written, for excluding the witnesses was their failure to appear at the motion hearing and, rather than reviewing that decision | ¿under the appropriate abuse of discretion standard, necessarily undertakes a de novo review of record to find a basis for upholding the decision. This is also error. Accordingly, although I am reluctant to vacate a jury verdict based upon a pretrial error, I respectfully dissent. The trial court error in granting the plaintiffs motion in limine based upon a misconception of the law should not be compounded by the imposition of an erroneous standard of review.

      . Claims made on behalf of Alfred Donaldson's minor son were settled and are not at issue in this appeal.

      . See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . In particular, the jury awarded the following: $25,000 for past medical expenses, $50,000 for future medical expenses, $50,000 for past and future physical pain and suffering, $50,000 for past and future mental anguish, and $25,000 for loss of enjoyment of life.

      . In brief, the plaintiff does not challenge the award for loss of enjoyment of life. Instead, it appears that he mistakenly challenged an award for loss of consortium, when there was none.

      . Cervical facet syndrome causes pain when the facet joints in the neck do not move properly.

      . A rhizotomy is a procedure that destroys nerves.

      . Special damages are those which have a "ready market value,” such that the amount of damages theoretically may be determined or calculated with relative certainty, such as medical expenses and past lost wages. Kaiser, 06-2092 at 11, 953 So.2d at 810 (citing McGee v. AC and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770).

      . This court declined to exercise its supervisory jurisdiction when the matter was brought before the court on application for supervisory writ.


source: Caselaw Access Project

author: STEWART, J. DREW, J.,

license: Public Domain

text:
    WILLIS-KNIGHTON HEALTH SYSTEM, et al., Plaintiffs-Appellants v. NORTHWEST LOUISIANA COUNCIL OF GOVERNMENTS, et al., Defendants-Appellees. Willis-Knighton Medical Center, Plaintiff-Appellant v. Timothy A. Larkin, Larkin Development North, LLC, Larkin Development at Railsback, LLC, the City of Shreveport, Louisiana, Cedric Glover, and Ron Norwood, Defendants-Appellees.
    Nos. 48,141-CA, 48,142-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.
    Rehearing Denied May 9, 2013.

      The Pesnell Law Firm, Shreveport, LA, by Billy R. Pesnell, John W. Pesnell, for Plaintiffs-Appellants, Willis-Knighton Health System, Willis-Knighton Medical Center and Finish 3132 Coalition, LLC.
    The Pesnell Law Firm, Shreveport, LA, by Billy R. Pesnell, John W. Pesnell, for Intervenor-Appellant Karen Wells.
    The Faircloth Law Group by Barbara B. Melton, Alexandria, LA, for Defendant-Appellee State of Louisiana, DOTD.
    The Malone Law Firm by Dannye W. Malone, Shreveport, LA, for Defendants-Appellees, Metropolitan Planning Commission, City of Shreveport and Shreveport City Council.
    Michael H. Wainwright, Fischer, Hathaway & Manno by Donald E. Hathaway, Jr., Shreveport, LA, for Defendant-Appel-lee Burk-Kleinpeter, Inc.
    The Malone Law Firm by Dannye W. Malone, Barham, Warner, Stroud & McKay by Jennifer P. McKay, Shreveport, LA, for Defendant-Appellee Ron Nor-wood.
    The Malone Law Firm by Dannye W. Malone, The Law Offices of Ronald F. Lattier by Ronald F. Lattier, Shreveport, LA, for Defendant-Appellee Cedric Glover, Mayor.
    Bradley, Murchison, Kelly & Shea, Shreveport, LA, by Jerald N. Jones, for Defendant-Appellee Northwest Louisiana Council of Governments.
    R. Cody Mayo, Jr., Shreveport, LA, for Defendant-Appellee J. Kent Rogers.
    Blanchard Walker O’Quin & Roberts, Shreveport, LA, by M. Thomas Arceneaux, Stacey D. Williams, for Defendants-Appel-lees Timothy A. Larkin, Larkin Development North, LLC and Larkin Development at Railsback, LLC.
    Before STEWART, DREW and MOORE, JJ.
   STEWART, J.

11 At issue in this appeal is whether the trial court erred in denying a request for a preliminary injunction to enjoin the construction of a road located in the City of Shreveport on the grounds that neither the approval of the governing authority nor the necessary permits have been obtained. For the reasons set forth in this opinion, we find that the trial court did not abuse its discretion in denying the preliminary injunction, and we affirm the trial court’s judgment.

PROCEDURAL HISTORY

This matter is enmeshed in the controversy surrounding the possible future extension of Louisiana Highway 3132 (“3132”) south of its present terminus at Louisiana Highway 523, which is also known as Flournoy-Lucas Road in the City of Shreveport and will be referred to as such in this opinion. The road at issue, designated as Forbing Ridge Road, is being constructed south of Flournoy-Lucas near its intersection with 3132 in an area that is within the corridor for the extension of 3132. As discussed infra, the road is being constructed to satisfy a stipulation included in ordinances that rezoned property for the development of the Esplanade Subdivision (“Esplanade”).

The future route of the 3132 extension is at the heart of a suit for declaratory and injunctive relief filed on September 4, 2012, by Willis-Knighton Health System, Inc., a/k/a Willis-Knighton Medical Center (“Willis-Knighton”) and the Finish 3132 Coalition, L.L.C., under Docket No. 562,-337. Defendants named in the suit include the Northwest Louisiana Council of Governments (“NLCOG”); the Shreveport Metropolitan |2Planning Commission of Caddo Parish (“MPC”); the Louisiana Department of Transportation and Development (“DOTD”); the Shreveport City Council (“City Council”); Buchart-Horn, Inc., a consulting firm that prepared the Stage “0” Study concerning feasible alternative routes for the 3132 extension; Cedric Glover (“Mayor Glover”), individually and as mayor of the City of Shreveport; Ron Norwood (“Norwood”), individually and as city engineer for the City of Shreveport; J. Kent Rogers, individually and as the executive director of the NLCOG; Timothy A. Larkin (“Larkin”); Larkin Development North, L.L.C. (“Lar-kin North”); and Larkin Development at Railsback, L.L.C. (“Larkin Railsback”). The petition catalogues a litany of allegations concerning actions by the defendants that have impacted or may impact potential routes for the projected 3132 extension. Along with other relief sought, the petition prays that Larkin, Larkin North, and Larkin Railsback (“Larkin defendants”) be enjoined from proceeding with the development of Esplanade until they obtain permanent access to Flournoy-Lu-cas and until the route for the proposed 3132 extension has been determined.

On November 19, 2012, Willis-Knighton filed a second suit under Docket No. 564,-141 against Mayor Glover and Norwood, in their individual and official capacities, the City of Shreveport, and the Larkin defendants. The petition alleges that the Lar-kin defendants are proceeding with construction without approval of the MPC and without having applied for and obtained the permit and City Council approval required under Sections 78-55 et seq., of the Shreveport Code of Ordinances, for construction of a |3driveway, approach or entrance in a residential area of the city or upon or to property zoned for residential use. The petition alleges that Mayor Glover and Norwood committed ultra vires acts to aid the Larkin defendants to proceed without proper authorization. The petition prays for a temporary restraining order as well as preliminary and permanent injunctions to prohibit further ultra vires acts and to prohibit the Larkin defendants from conducting, performing, or carrying out construction of the road until they secure the necessary permits and approvals.

The trial court set both matters for a hearing to determine whether they should be consolidated or whether the filing of the second suit rendered the first moot. The defendants filed various exceptions, including an exception of lis pendens by the Larkin defendants in response to the second suit. On December 19, 2012, the trial court, in lieu of granting the exception of lis pendens, ordered the two cases consolidated and directed Willis-Knighton to amend and supplement its pleadings in Docket No. 562,337. The trial court also allowed Willis-Knighton to proceed immediately with its request for injunctive relief under Docket No. 564,141. An evidentiary hearing began that day and concluded on December 21, 2012, at which time the trial court denied Willis-Knighton’s request for a preliminary injunction. This devolutive appeal followed.

| ¿FACTS

The facts related here are taken from the testimony presented and documents introduced into evidence at the preliminary injunction hearing.

Larkin Railsback owns approximately 100 acres of land that lies to the north of Railsback Road at its intersection with Ellerbe Road and south of Bayou Pierre, which generally lies on an east to west axis north of Railsback Road and south of Flournoy-Lucas. Larkin North owns approximately 37 acres of land located between Bayou Pierre and Flournoy-Lucas.

By Ordinance No. 4724 of 2007, enacted by the Caddo Parish Commission as recommended by the MPC, the Larkin Rails-back property was rezoned from R-A, Residence-Agriculture District, to R-1B, Suburban, One-Family Residence, Planned Unit Development (PUD) District. By Ordinance No. 5070 of 2011, approximately 10 additional acres north of Rails-back Road were rezoned in the same manner to expand the Esplanade’s boundary. The City of Shreveport has since annexed the property affected by the ordinances. Both zoning ordinances include the following stipulation (“Stipulation No. 8”), which states:

New homes shall not be constructed except homes that front Railsback Road until documentation from the appropriate authorities having jurisdiction has been received by the Planning Director that clearly demonstrates to the satisfaction of the Planning Director that the Flournoy-Lucas entrance, bridge and boulevard from Railsback Road to Flournoy-Lucas Road has been completely constructed to in [sic] compliance with any and all local state and federal guidelines that may be applicable to said construction.

The record indicates that the requirement for a Flournoy-Lucas access was an effort to appease Railsback Road property owners who had concerns | sabout increased traffic generated by the Esplanade. The initial plan was for a joint or shared access with The Glen Retirement System (“The Glen”), the owner of the property adjacent to that owned by Larkin North on Flour-noy-Lucas. According to Rhonda Beau-vais (“Beauvais”), The Glen’s president, discussions about joint access began in 2007 with Larkin, DOTD, NLCOG, and others and continued until about January 2012. By a letter dated March 19, 2012, Beauvais informed DOTD that The Glen’s board of directors had decided not to participate in the shared access project. Notably, Stipulation No. 3 does not specify a location or alignment for the road connecting to Flournoy-Lucas.

After The Glen’s decision, Larkin North began implementing plans to construct Forbing Ridge Road through its property from a bridge constructed over Bayou Pierre to Flournoy-Lucas near its intersection with 31S2. On April 3, 2012, Lar-kin North signed a contract with Ronald G. Carlson, Inc., for construction of the road. On April 12, 2012, Larkin, as a managing member of Larkin North, executed a document entitled “Public | ^Servitude of Passage and Access Road Right-of-Way Relocation.” The servitude or right-of-way is a 60-foot wide strip from the bridge over Bayou Pierre to FIournoy-Lucas. The document, executed by Larkin and recorded in the Caddo Parish public records, includes the following “Road Dedication Note:”

The undersigned owner hereby dedicates a public servitude of passage upon the described right of way. The servitude of passage or any portion thereof may not be revoked without the dedication of a replacement servitude connecting the FIournoy-Lucas Road to the existing Bayou Pierre Bridge. The roadway improvements within the servitude shall be constructed to comply with all local, state and federal guidelines that are applicable to said construction. The roadway shall be privately maintained until such time as public dedication is granted.

Also on April 12, 2012, Larkin wrote to Charles Kirkland (“Kirkland”), executive director of the MPC, to inform him of the planned improvements for roadway access between the Bayou Pierre bridge and FIournoy-Lucas. The letter states:

When these improvements are completed they have been designed and located to fulfill the stipulation by the [MPC] to construct the final segment of a roadway to complete a connection from Railsback Road to FIournoy-Lucas Road in compliance with local, state, and federal guidelines that are applicable.
The purpose of this letter is to submit this to the MPC, prior to the commencement of the roadway construction, a request that the commission approve and verify that the proposed alignment along with the servitude for these improvements comply with that stipulation.

Larkin testified that he first asked Kirkland to verify that the road would satisfy the stipulation. Kirkland advised him to make his request to |7the MPC. In his testimony, Kirkland agreed that Larkin’s letter was not an application for the MPC’s approval of construction of the road. Rather, Larkin was looking for some guarantee or assurance that he would be able to proceed with building houses in Esplanade once the road was constructed. Kirkland’s testimony was somewhat contradictory on the issues of whether the road is private or public and whether its construction required MPC approval. He explained that the MPC’s subdivision regulations are not applicable because the road is not located on the property platted and approved for the Esplanade development and is not part of the master plan. Rather, it is located south of the subdivision property on raw, undeveloped land that is zoned residential.

Larkin North’s request was denied by the MPC at a public hearing on May 2, 2012. A number of speakers voiced opposition, which mostly concerned the impact of the road on the corridor for the extension of 3132. There were also concerns about the effect of traffic on retirement homes and other residential developments along FIournoy-Lucas. The MPC adopted a motion “to deny the proposed roadway alignment for the primary and permanent access to FIournoy-Lucas Road for the Esplanade Development.” The MPC indicated that it would consider at its next public hearing stipulation changes to Ordinance 4724 of 2007 regarding building permits and access. It appears no such changes were made.

Larkin appealed the MPC’s denial to the City Council, which took up the matter on May 22, 2012. The City Council adopted a motion to remand the matter to the MPC with the request that it work with the property owner 18to reach some agreement that would allow for use of the “temporary unapproved construction road” and the issuance of building permits, with any residents using the Railsback Road entrance.

After failing to reach an agreement as directed by the City Council, the MPC affirmed its earlier decision on September 5, 2012. The minutes of the MPC proceedings refer to comments by Desi Sprawls, vice-chairman of the MPC, regarding its consideration of Larkin’s request and the City Council’s remand. As summarized, Sprawls commented that the stipulation speaks for itself. It sets forth the requirements to be met by the applicant and directs the planning director to determine whether they have been satisfied. Sprawls did not see that any action was required by the MPC.

Again, Larkin appealed the MPC’s decision to the City Council, which took up the matter on October 9, 2012. At this meeting, Larkin informed the council that he had obtained from DOTD a permanent access connection permit for the road to connect at Flournoy-Lucas; prior to this he had a temporary permit only. There was discussion among the council members as to whether Larkin was seeking permission to build the road or merely advice as to whether it would satisfy the stipulation. When asked whether the council could prohibit construction of the road, the city attorney opined that it could not because the road was required by Stipulation No. 3. 1 ^Council members offered competing motions to uphold the MPC’s decision, to modify it to state that the request presented an administrative question that must be decided by the planning director upon completion of the road, or to dismiss because the council does not provide advisory opinions. The City Council approved the latter and dismissed the appeal. It provided no definitive answer in response to Larkin’s request.

As stated above, Larkin had by this time obtained from DOTD the access connection permit for connection of the road to Flournoy-Lucas. By letter dated October 10, 2012, Larkin informed Norwood that he intended to proceed with construction, and he submitted the construction plans, the construction contract, and a check from Larkin Railsbaek for an inspection fee equal to 5% of the contract amount ($51,904.78), as required by Sec. 78^12 of the Shreveport Code of Ordinances, discussed infra.

By letter dated October 26, 2012, Nor-wood informed Larkin that the items he submitted were acceptable and that the city engineer’s office would provide the necessary inspection. The letter also informed Larkin that future dedication of the roadway would require approval of the plans by the director of the MPC and city engineer, as well as approval of the dedication by the City Council. That same day, the City of Shreveport issued Larkin North a land altering permit for clearing and grading of the right of way for construction of the road. On October 30, 2012, the City of Shreveport |inissued to Larkin Railsbaek the permit or receipt reflecting the payment of $51,904.78 for engineering and inspection fees for construction of the road. According to Nor-wood, neither the land altering permit nor the assignment of an inspector required approval of the MPC or City Council. He also testified that no other permit was required from the City of Shreveport for construction to begin. Norwood explained that, because Flournoy-Lucas is a state highway, the City of Shreveport is not responsible for maintaining it and does not issue permits for connections to it.

Construction of Forbing Ridge Road began soon thereafter. At the preliminary injunction hearing, Ronald Carlson, the owner of the company constructing the road, testified that it was 70 percent complete and would be substantially complete by the end of January 2013. As explained by Craig, the road is constructed as a boulevard from its connection with the bridge at Bayou Pierre. The boulevard section has 14-foot concrete lanes that converge to two 12-foot asphalt lanes as the road nears Flournoy-Lucas, where it then flares to approximately 45 feet at the connection. The asphalt construction will accommodate any future need to change the roadway alignment at DOTD’s direction. Because there is a median between the lanes on Flournoy-Lucas where the road connects, the road has right-in, right-out access only, in accordance with DOTD policy. According to the construction contract, the total construction cost is $1,052,095.00.

ASSIGNMENTS OF ERROR

Willis-Knighton asserts that the trial court erred in denying its application for a preliminary injunction to enjoin and prohibit the Larkin 1 ¶, defendants from proceeding with construction of the road. It asserts that the trial court failed to find that construction could not commence without approval of the City Council as required by Section 78-56 of the Shreveport Code of Ordinances. It also asserts that the trial court failed to find that prior approval of the MPC was required under the zoning ordinances and pursuant to La. R.S. 33:140.14.

DISCUSSION

Injunctive relief is a harsh, drastic, and extraordinary remedy that is typically available only where the moving party is threatened with irreparable injury or loss and is without an adequate remedy at law. Louisiana Granite v. LA Granite Countertops, L.L.C., 45,482 (La.App.2d Cir.8/18/10), 47 So.3d 573, writ denied, 2010-2354 (La.12/10/10), 51 So.3d 733; Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270 (La.App. 1st Cir.03/24/05), 906 So.2d 660. The preliminary injunction is an interlocutory procedural device that is designed to preserve the status quo pending a trial on the merits. Louisiana Granite, supra. Generally, a preliminary injunction may be issued where the moving party makes a prima facie showing that he will prevail on the merits. Id. 112This requires the party seeking the preliminary injunction to show that he will suffer irreparable injury if the injunction is not issued and that he is entitled to the relief sought. Concerned Citizens, supra. However, when the act sought to be enjoined is unlawful or a deprivation of constitutional rights is involved, a showing of irreparable injury is not necessary. Id.; Jurisich v. Jenkins, 99-0076 (La.10/19/99), 749 So.2d 597. The trial court has great discretion in granting or denying a preliminary injunction. Louisiana Granite, supra; Lafreniere Park Foundation v. Friends of Lafreniere Park, Inc., 97-152 (La.App. 5th Cir.7/29/97), 698 So.2d 449, writ denied, 97-2196 (La.11/21/97), 703 So.2d 1812.

Willis-Knighton argues that it is not required to prove irreparable injury because the construction of the road is unlawful. Before addressing the alleged unlawfulness of the conduct sought to be enjoined, we find that there is no prima facie showing of irreparable injury, or any injury to Willis-Knighton or Wells. Wells did not testify at the hearing; thus, there is no evidence of what, if any, injury she has allegedly suffered from construction of the road. Willis-Knighton sought to show through the testimony of its employee, Marian Dehan (“Dehan”), manager of community outreach for its retirement community, The Oaks, that construction of the road has adversely affected its business and residents. At most, Dehan’s testimony suggests that there has been an increase in traffic on Flournoy-Lucas in recent years. This increase predates construction of the road during the past few months. Dehan admitted that Flournoy-Lucas had been a two-lane road when The Oaks began operating but that it is now a four-lane highway in the vicinity 113of 3132. Dehan also testified that The Oaks is located about a quarter of a mile from Forbing Ridge Road and that there are two traffic lights between them. Traffic concerns on the part of residents of The Oaks and the speculative effect of increased traffic on its occupancy rate are easily attributable to the widening of Flournoy-Lucas in the vicinity of 3132, not the construction of Forbing Ridge Road during the last few months. There is no evidence of injury to Willis-Knighton from the construction of Forbing Ridge Road.

In the absence of irreparable injury, we now examine whether the construction of Forbing Ridge Road is proceeding in violation of some prohibitory law. Willis-Knighton asserts that the Larkin defendants are proceeding without the permit and City Council approval required by Sections 78-51 and 78-56 of the Shreveport Code of Ordinances, which provide in relevant part as follows:

Sec. 78-51:
(a) No person shall construct any driveway, approach or other entrance from any of the streets of the city across a curbing, sidewalk or other neutral ground without first having obtained a permit therefor from the director of public works or his designee.
(b) An inspection fee shall be charged to each permit holder in the amount of $45.00; provided, however, that should it become necessary for the city to maintain an inspector on any job for a full day or more, in order to properly inspect this work, then the charge shall be $125.00 per day for each inspector furnished by the city department of public works.
Sec. 78-56:
(a) The director of public works shall have authority to issue a permit for the construction of a driveway, approach or entrance in the residential area of the city, or upon or to property zoned for residential use. Such a permit shall be issued by the director of public 114works as a matter of course, unless the director shall find that the granting of such a permit would be unsafe, dangerous or greatly inconvenient to the public, in which event he shall refer the application for the permit to the city council, (b) No permit shall be issued by the director of public works under subsection (a) of this section for the construction of a driveway, approach or entrance exceeding ten feet in width at the property line.

Under these provisions, the City of Shreveport authorizes by permit and /or City Council approval connections of driveways, approaches, or entrances to the streets of the city. Willis-Knighton contends that Larkin North cannot proceed with construction of the road and its connection to Flournoy-Lucas without the City Council’s approval of the permit required by these ordinances. As pointed out by Willis-Knighton, the City of Shreveport, pursuant to its home rule charter, has broad police powers to regulate and control the roads and streets within its municipal limits and may make reasonable regulations for their use. WesT-Erre Dev. Corp. v. Terrebonne Parish, through Police Jury of Terrebonne Parish, 416 So.2d 209 (La.App. 1st Cir.1982), writ denied, 421 So.2d 251 (La.1982); Scott v. City of West Monroe, 95 So.2d 343 (La.App. 2d Cir.1957). A municipality under home rule charter is authorized to exercise any power and perform any function necessary, requisite, or proper for the management of its affairs that is not denied by law. La. Const. Art. 6, § 5(E); La. R.S. 33:361(A).

However, the power of local governments is limited in that “the police power of the state shall never be abridged.” La. Const. Art. 6, § 9; City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748; City of Baton Rouge v. Williams, 95-0308 (La.10/16/95), 661 So.2d 445.

As previously noted, Flournoy-Lucas is a state highway. The DOTD, as an exercise of the police power of the state, is authorized to supervise and regulate all traffic on highways in the state highway system. La. R.S. 32:2(A)(1). Pursuant to this broad authorization, the state through DOTD has the authority to prohibit entrance and exit from private property adjacent to the state highway right of ways. Lambert Development Co. Inc. v. State, 482 So.2d 859 (La.App. 2d Cir.1986), writ denied, 487 So.2d 432 (La.1986). This authorization is set forth by La. R.S. 48:344, which reads:

Entrances and exits from private properties adjacent to the rights-of-way of state highways may be regulated, prohibited, or abolished in the interest of the safety of the traveling public. The chief engineer of the Department of Transportation and Development, from time to time, shall prepare and promulgate descriptions and illustrations of various types and styles of entrances and exits consistent with this purpose and shall issue permits of necessity and convenience for the installation of entrances and exits in accordance with promulgated regulations and standards. The department may apply to the courts for such process as may be necessary to make the provisions of this Section effective.

Pursuant to its authority to prohibit entrances and exits from private property adjacent to state highways, the DOTD issued an access connection permit to Lar-kin North on September 12, 2012, authorizing connection of Forbing Ridge Road to Flournoy-Lucas. The issuance of that permit is not before this court for review. By issuing the permit, DOTD determined to allow the connection of the road to Flournoy-Lucas, a state highway under its supervision. Under WiUis-Knighton’s argument that a permit and / or City Council approval is required under Sections 78-51 and 78-56, the City 11fiof Shreveport would have the power to countermand DOTD’s authorization allowing connection of the road to a state highway. Such power would impermissibly abridge the police power of the state as exercised by DOTD over state highways. The power to authorize connections to state highways is within the province of DOTD regardless of whether the connection to the highway is within the city limits of a municipality. As previously stated, Norwood testified that the city does not maintain Flournoy-Lucas and does not issue permits for connections to it because it is a state highway. For these reasons, we find that Larkin North was not required to comply with Sections 78-51 and 78-56 prior to commencement of construction.

As noted by Willis-Knighton, the regulations governing issuance of access connection permits by DOTD provide that additional permits may be required by local governing authorities and that issuance of a DOTD access connection permit does not guarantee that the applicant will receive other required state or local permits. LAC 70:1.1501. In fact, Larkin North was required to obtain and did obtain a land altering permit. Norwood testified that this was the only permit required. No one testified otherwise. Additionally, Larkin Railsback, as the developer of Esplanade, paid $51,904.78 in inspection fees for the project to comply with Shreveport Code of Ordinances Sec. 78-42. Presumably, Lar-kin Railsback paid this on behalf of Larkin North because the road is being built to comply with | ^Stipulation No. 3 in order for construction in Esplanade to proceed. The record does not establish that any additional permit or authorization from the City of Shreveport was required.

Now, we turn to Willis-Knighton’s argument that the MPC’s approval was required prior to commencement of construction. Willis-Knighton bases this argument on stipulations included in the zoning ordinances, No. 4724 and No. 5070. According to Willis-Knighton, the ordinances include a stipulation providing for development of the property in substantial accord with the site plan and any significant changes requiring further review and approval by the MPC. They assert that the road is a significant change from the initial plan for joint access with The Glen that requires MPC approval.

Enforcement of zoning ordinances enacted by the City Council upon recommendation of the MPC is governed by La. R.S. 33:140.33, which states, with emphasis added:

The city council and the police jury may provide for the enforcement of any ordinance enacted under this Sub-part. A violation of any such ordinance is hereby declared a misdemeanor. In case any building or structure is or is proposed to be erected, constructed, reconstructed, altered, converted, or maintained, or any building structure, or land is or is proposed to be used in violation of any ordinance enacted under this Sub-part, the building inspector, permit and zoning clerk, municipal or parish counsel, or other appropriate authority of the municipality or of the parish, or any adjacent or neighboring property owner who would be specifically damaged by such violation, may, in addition to other remedies, institute injunction, mandamus, or other appropriate action or proceeding to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance, or use, or to correct or abate such violation, or to prevent the occupancy of such building, structure, or land.

11sUnder this provision, only adjacent or neighboring property owners who would be specifically damaged by a violation of a zoning ordinance may seek injunctive relief. As previously addressed, the record does not establish any injury to Willis-Knighton or Wells resulting from construction of the road. There is no prima facie showing that either Willis-Knighton or Wells, if considered adjacent or neighboring property owners, would be specifically damaged by construction of the road. For this reason, neither Willis-Knighton nor Wells is entitled to injunctive relief based on any alleged violation of the zoning ordinances in this matter.

Lastly, Willis-Knighton asserts that Forbing Ridge Road is a public road by virtue of a formal dedication and, that as a public road, it must approved by the MPC as provided under La. R.S. 33:140.14. This provision pertains to the legal status of the plan, meaning the master plan for the physical development of the City of Shreveport and its environs. In relevant part, La. R.S. 33:140.14 states:

After adoption of the master plan or any part thereof, then and thenceforth no street, park, or any public way, ground, place, or space, no public building or structure, school or school site, or no public utility, whether publicly or privately owned, shall be constructed or authorized in the area of the adopted plan until and unless the location and extent thereof shall have been submitted to and approved by the planning commission; provided that in the case of disapproval, the commission shall communicate its reasons to the City Council or Police Jury, as appropriate, and the City Council or Police Jury, by a vote of not less than two-thirds of its entire membership shall have the power to overrule such disapproval and, upon such overruling, the City Council, Police Jury, or the appropriate board or officer shall have the power to proceed; provided, however, that if the public way, ground, place, space, building structure, school or school site, or utility be one the authorization or financing of which does not, under the law or charter provisions governing the same, fall within the province of the City Council or Police Jury or other body or official of the City of\ 1Shreveport or of Caddo Parish, then the submission to the planning commission shall be by the board or official having such jurisdiction, and the planning commission’s disapproval may be overruled by such board by a vote of not less than two-thirds of its entire membership or by said official.

The italicized language shows that La. R.S. 33:140.14 applies to public ways, places, or spaces, including schools and utilities, that are constructed, authorized, or financed by some city or parish body or other governmental board or official that would have the authority to overrule the disapproval of the MPC and to proceed with the public works. A private person, like Larkin North, would not have authority to overrule the MPC’s disapproval. La. R.S. 33:140.14 does not require prior MPC approval for construction of the road regardless of whether the road is intended to be dedicated as a public road by Larkin North. Having determined that La. R.S. 33:140.14 does not require prior MPC approval for construction of the road, we need not address whether the “Public Servitude of Passage and Access Road Right-of-Way Relocation” executed by Larkin North on April 12, 2012, effected a formal dedication of the road.

For these reasons, we find no abuse of discretion by the trial court in denying the preliminary injunction sought by Willis-Knighton and Wells.

CONCLUSION

We affirm the trial court’s judgment with costs of appeal assessed to the appellants, Willis-Knighton and Karen Wells.

AFFIRMED.

DREW, J., dissents with written reasons.

DREW, J.,

dissenting.

hThe Shreveport City Council declined to grant a permit for the construction of Forbing Ridge Road, as required by Section 78-56 of the city ordinances.

The phrase “any streets of the city” properly pertains to all streets located within the city limits, not necessarily owned or maintained by the municipality.

Surely the defendants sought a permit from the council for a valid reason. If council approval was not necessary, why go through a meaningless theatrical process?

The permit was required, but not granted. For whatever reason, the council declined to act on the requested approval.

Accordingly, I respectfully dissent, as I would reverse the decision of the trial court, grant the preliminary injunction, and let the chips fall where they may.

APPLICATION FOR REHEARING

Before BROWN, STEWART, DREW, MOORE and LOLLEY, JJ.

L Rehearing denied.

DREW, J., would grant rehearing.

      . The City of Shreveport filed an appellee brief adopting the arguments of the Larkin defendants. Mayor Glover and Norwood, in their individual capacities, filed briefs arguing that the trial court correctly sustained their exceptions of no cause of action. However, the ruling on the exceptions of no cause of action is not before us in this appeal.

      .According to a July 29, 2011, letter from Eric Kalivoda, a DOTD deputy secretary, to Larkin, as president of Larkin Development Corporation ("LDC”), DOTD intended to "extend its control-of-access in all four quadrants of the LA 3132/523 interchange.” As part of this process, it intended to construct an access road that would connect with the road in LDC's development and provide functionality for both the development and The Glen. DOTD anticipated transferring its access road to the City once complete. DOTD agreed to allow LDC temporary access to Flournoy-Lucas (La. 523) until it completed the planned access road. The letter concludes by stating that the future extension of 3132 "to the south shall not be impeded by the improvements discussed herein or by any other DOTD, NLCOG, City, MPC, or LDC actions.” Of course, DOTD’s planned access road did not come to fruition.

      . The record indicates that there was an existing access road from Flournoy-Lucas that was being used for construction purposes by the Larkin parties and for ongoing construction at the Twelve Oaks subdivision off of Flournoy-Lucas.

      . Karen Wells, a resident of the Twelve Oaks subdivision located to the east of the Larkin North property, executed and recorded an acceptance of the servitude of passage on behalf of herself and the public on November 9, 2012. Wells then hied a petition of intervention on December 18, 2012. She did not testify at the preliminary injunction hearing.

      . Presumably the planning director refers to the executive director of the MPC. Thus, Kirkland, as planning director / executive director, would be responsible for determining whether Stipulation No. 3 has been satisfied. Whether Forbing Ridge Road would satisfy Stipulation No. 3 is what Larkin sought to determine from Kirkland before proceeding with construction. However, due to the politics and controversy surrounding the potential extension of 3132, the request led to the series of hearings where the MPC and City Council apparently sought to revisit an issue, namely, the construction of the road connecting to Flournoy-Lucas, that had already been authorized by Ordinances 4724 and 5070.

      . The letter and record indicate that plans had previously been submitted and modifications had been made as required by the city engineer’s office. A subsequent set of plans dated November 7, 2012, is included in the record. Andy Craig, the chief engineer with the firm which drew up the road plans, testified that plans had been submitted to the city engineer and revised several times and that it is not unusual for additional changes to be made even after the city engineer assigns an inspector.

      . Willis-Knighton notes that the trial court failed to provide written reasons for judgment as requested. La. C.C.P. art. 1917 requires the court, when requested by a party in all appealable contested cases, to give written findings of fact and reasons for judgment provided the request is made not later than ten days after the mailing of the notice of the signing of the judgment. Willis-Knighton filed a request for written reasons prior to the preliminary injunction hearing on November 21, 2012, on December 27, 2012, and again on January 4, 2013. We caution the trial court that its duty under Article 1917 is mandatory. The proper remedy for the trial court’s failure to comply with an Article 1917 request is to apply for supervisory review or move for remand to compel the trial court’s compliance. Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32,441 (La.App.2d Cir. 12/8/99), 748 So.2d 594. No remedy was sought in this case.

      . Sec. 78-42 provides in relevant part:
      Any contractor, builder or developer shall be levied a construction inspection fee based upon construction costs of streets and drainage projects on properties privately owned, which are intended to be donated to the city for public use.

      . La. R.S. 33:140.1, et seq., authorizes the creation and sets forth the powers and duties of the Shreveport Metropolitan Planning Commission, including the making and adoption of zoning plans and the enactment of zoning ordinances.

      . I strongly disapprove of the language used by counsel for the appellant in referring to an action of the trial court (Footnote 14 of plaintiffs' original brief). Plaintiffs should have used less confrontational language in noting their complaints. See U.R.C.A. 2-12.4.


author: STEWART, J.

text:
    Julia CLOUD, Plaintiff-Appellant v. Jo Ann Boggs BARNES, Michael Delesdernier, Attorney at Law and ABC Insurance Company, Defendants-Appellants.
    No. 47,764-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 17, 2013.
    Rehearing Denied May 9, 2013.

      Rickey K. Swift, Ernest H. Gilliam, III, for Appellants, Rickey K. Swift and Julia Cloud.
    Michael R. Delesdernier, Metairie, LA, for Appellees, Michael R. Delesdernier and Jo Ann Boggs Barnes.
    Before WILLIAMS, STEWART and PITMAN, JJ.
   STEWART, J.

Lin this case, the trial court awarded Attorney Michael Delesdernier sanctions for legal fees expended in the amount of $12,370.07, and Mrs. Jo Ann Boggs Barnes sanctions for -legal fees expended in the amount of $2,500.00. Both parties appeal several aspects of the trial court’s judgment. For the following reasons, we affirm.

FACTS

On June 27, 1994, Jo Ann Boggs Barnes (hereinafter referred to as “Mrs. Barnes”) and her now deceased husband, Clyde A. Barnes, Jr., transferred ownership of their property to their son, Clyde A. Barnes, III, and their daughter-in-law, Julia Cloud (hereinafter referred to as “Mrs. Cloud,”) for $1,500.00. The property (hereinafter referred to as “Mallard property”) was located at 10758 Mallard Drive, Keithville, Louisiana, 71047.

Mrs. Cloud and Clyde A. Barnes, III, divorced in August of 2004. In the divorce proceedings, Mrs. Cloud sought to include the Mallard property in the division of community property. The district court determined that the Mallard property was community property and ordered that it be sold.

In August of 2008, Mrs. Barnes filed suit against Clyde A. Barnes, III, and Mrs. Cloud, requesting that the court either transfer the property back to her or to grant her full use and/or usufruct. She alternatively requested reimbursement for property tax payments and improvements in the amount of $116,468.00 from them. Mrs. Barnes filed a notice of lis pendens specifically identifying the Mallard property-

12Since Mrs. Barnes resided at the Mallard property, Mrs. Cloud filed a rule to evict her so that the property could be sold. The district court denied the rule, finding that Mrs. Barnes was entitled to remain in the house until she was reimbursed.

The trial court awarded Mrs. Barnes reimbursements in the amount of $58,211.50, but assessed her with rent in the amount of $32,400.00. After the rent offset, Mrs. Barnes received $25,811.50. Mrs. Barnes filed a motion for new trial, seeking additional damages and reconsideration of the rental payments that had been assessed against her. She was granted additional damages in the amount of $953.82. Mrs. Cloud’s motion to evict Mrs. Barnes was granted, and judgment was rendered ordering Mrs. Barnes to vacate the premises and deliver the property to Mrs. Cloud on November 30, 2010. Further, Mrs. Cloud’s petition of mandamus was granted, ordering that the notice of lis pendens be cancelled from the mortgage records.

Mrs. Barnes filed a devolutive appeal. Once the delay for the devolutive appeal had run, Mrs. Cloud attempted to sell the property. On or about January 18, 2011, Mrs. Cloud obtained a contract to sell the Mallard property, and was scheduled to close on January 21, 2011. A representative of the closing attorney’s office contacted Attorney Delesdernier and requested that he cancel a notice of lis pendens he had filed. He informed the representative that he would not cancel the notice. He also informed the | sclosing attorney’s representative that he was pursuing an appeal, and if he was successful, he would attempt to regain possession of Mrs. Cloud’s property regardless of whether it had been sold. As a result of this conversation, the closing attorney did not grant clear title to Mrs. Cloud’s property.

On January 31, 2011, Mrs. Cloud filed a petition for damages against Attorney De-lesdernier, alleging that he is liable to her because he communicated with the closing attorney regarding Mrs. Barnes’s intent to seek possession of the Mallard property if he was successful on appeal. Prior to filing suit, Mrs. Cloud’s attorney, Rickey Swift, faxed a letter to Attorney Delesder-nier on January 14, 2011, to inform him that he would file a bar complaint if he did not convince Mrs. Barnes to waive her rights in the appeal that was pending in this court at that time. Swift then sent Attorney Delesdernier a draft petition initially naming Mrs. Cloud as the plaintiff, and Attorney Delesdernier as the defendant. Mrs. Barnes was later named as co-defendant in the matter.

Attorney Delesdernier filed an exception of no cause of action in response to Attorney Swift’s petition. This exception was granted, dismissing all claims against Attorney Delesdernier with prejudice. Attorney Delesdernier reserved his right to pursue sanctions, asserting that the lawsuit deliberately created a conflict between him and Mrs. Barnes, restricting him from representing her.

Attorney Delesdernier filed an exception of no cause of action on behalf of Mrs. Barnes. At the hearing on June 27, 2011, the exception was |4granted, and Mrs. Cloud’s claims against Mrs. Barnes were dismissed with prejudice.

Soon thereafter, Attorney Delesdernier and Mrs. Barnes filed a motion for sanctions pursuant to La. C.C.P. art. 863. On November 18, 2011, Attorney Swift filed a motion to disqualify pursuant to Rule 3.7 of the Louisiana Rules of Professional Conduct. At the hearing on the motion, Attorney Swift noted that after reading the opposition, he should have filed a motion for summary judgment. The motion to disqualify was denied at Mrs. Cloud’s costs. Attorney Swift refused to agree to the proposed judgment denying the motion to disqualify, since it would have required that he and Mrs. Cloud pay court costs.

On April 2, 2012, Attorney Swift and Mrs. Cloud were sanctioned for violating La. C.C.P. art. 863. Attorney Delesdernier was awarded sanctions for the legal fees in the amount of $12,370.07. He was not awarded sanctions as a litigant for his travel costs, loss of time, and the legal costs to file the motion for sanctions. Mrs. Barnes was awarded sanctions for legal fees expended for the sanctions motion, but was not awarded legal fees for having to file and defend the motions to have the case dismissed. Mrs. Cloud filed a motion for new trial, which was denied.

Both parties have appealed. Mrs. Cloud and Attorney Swift appeal: (1) the denial of their motion to disqualify Attorney Delesdernier and assessing them with costs; (2) the denial of their motion for summary judgment; and (3) the judgment granted in favor of Mrs. Barnes and Attorney Delesdernier. Mrs. Barnes and Attorney Delesdernier appeal: (1) |5the denial of Attorney Delesdernier’s claim for cost and expenses related to the defense of the suit, including but not limited to travel cost; (2) the denial of his claim for damages related to the time he spent as a party to defend the suit filed against him; (3) the denial of his claim for legal fees for bringing the sanctions motion; and (4) the denial of Mrs. Barnes’s claim for legal fees associated with the suit.

LAW AND DISCUSSION

Motion to Disqualify

In their first assignment of error, Mrs. Cloud and Attorney Swift allege that the trial court erred in denying their motion to disqualify Attorney Swift and Attorney Delesdernier and assessing them with costs. The motion to disqualify asserted that Delesdernier “will unquestionably provide testimony which relates to an issue which is contested, the testimony does not relate to the nature and value of the legal services rendered, and there is no showing that this disqualification of the lawyer would work a substantial hardship on the client, since the lawsuit has only been recently filed, and the nature of the lawsuit is not complex.” Attorney Swift and Mrs. Cloud argued that Attorney De-lesdernier is unable to proceed as counsel because he is a material witness.

As stated in the facts section of this opinion, Attorney Delesdernier and Mrs. Barnes filed a motion for sanctions pursuant to LSA.-C.C.P. art. 863. Soon thereafter, Attorney Swift filed a motion to disqualify Delesdernier and himself pursuant to Rule 3.7 of the Louisiana Rules of Professional Conduct. Apparently, Attorney Swift contended that Attorney | fiDelesdernier would have been a material witness in the matter regarding sanctions. The trial court denied the motion to disqualify at Mrs. Cloud’s costs.

Rule 3.7 of the Louisiana Rules of Professional Conduct prohibits a lawyer from acting as an advocate in a trial in which the lawyer is likely to be called as a necessary witness except under certain circumstances. It provides in pertinent part:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

In the present case involving a motion for sanctions, Delesdernier is not only an attorney; he is also a party. In the motion, he noted that “pursuant to La. C.C.P. art. 863 Julia Cloud and Rickey Swift are liable to Michael R. Delesdernier and Jo Ann Barnes for attorney fees, expenses, costs, and sanctions.” Rule 3.7 does not address the situation where the lawyer is representing himself. The Comments to Rule 3.7 of the American Bar Association Model Rules of Professional Conduct (from which our Rule 3.7 is taken verbatim) state that the rationale of the advocate-witness rule do not apply to the pro se lawyer litigant. Farrington v. Law Firm of Sessions, Fishman, 96-1486 (La.2/25/97), 687 So.2d 997. Further, jurisprudence is devoid of any indication that a court has ever disqualified or even | considered disqualification of an attorney seeking sanctions pursuant to La. C.C. art. 863.

Additionally, Attorney Swift made the following comment during the motion for disqualification hearing:

However, however, what — after reading the case that deals with the law based upon the lawsuit that he’s filed, and I don’t know if the Court is aware of the law that addresses the matter in which — that he’s filed, my suggestion is that the Court defer from this and allow me to file a motion for summary judgment because I believe that this entire matter can be addressed upon a motion for summary judgment. And the reason I say that is because the law under what he has sued upon, the law is very, very clear, (emphasis added)

This comment proves that prior to this hearing, Attorney Swift researched this issue and realized that the motion for summary judgment would have been the proper vehicle for this matter. For reasons unknown, Swift, equipped with the knowledge that a motion for summary judgment would be the proper vehicle, declined to withdraw the motion to disqualify, choosing instead to continue to pursue this outlandish motion. Even though this motion sought to withdraw both him and Attorney Delesdernier, we can conclude that Swift made no effort to withdraw himself, since the record is void of any motion to withdraw as counsel on Swift’s behalf.

After a thorough review of the record, we find that this motion was unwarranted with no legal basis. For the reasons discussed above, we find no error in the trial court’s decision to deny the motion to disqualify. This assignment is meritless.

Motion for Summary Judgment

In their second assignment of error, Attorney Swift and Mrs. Cloud argue that the trial court erred in denying their motion for summary | judgment. In response to Attorney Delesdernier and Mrs. Barnes’s motion for sanctions, Attorney Swift and Mrs. Cloud filed a motion for summary judgment, asserting that Attorney Delesdernier and Mrs. Barnes “lacked factual support for essential elements of their claims.” As we stated in the facts portion of this opinion, Attorney Swift noted at the January 30, 2012, motion for disqualification hearing that he should have filed a motion for summary judgment instead of the motion for disqualification. He subsequently filed the motion for summary judgment on March 13, 2012.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Ricks v. City of Monroe, 44,811 (La.App. 2 Cir. 12/9/09), 26 So.3d 858. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). Summary judgment procedure is designed to secure the “just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969.” La. C.C.P. art. 966(A)(2).

The mover has the burden of establishing the absence of a genuine issue of material fact. If the mover will not bear the burden of proof at trial on the matter, then he is required to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action. La. C.C.P. art. 966(C)(2). The party opposing summary judgment cannot rest on mere allegations of his pleadings, but must show |9that he has evidence which could satisfy his evidentia-ry burden of proof at trial. If he does not produce such evidence, then there is no genuine issue of material fact and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2). Although the summary judgment procedure is favored and must be construed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law, factual inferences reasonably drawn from the evidence nevertheless must be construed in favor of the party opposing the motion, and all doubt must be resolved in favor of the opponent to summary judgment. Ricks, supra; Freeman v. Teague, 37,932 (La.App. 2 Cir. 12/10/03), 862 So.2d 371.

Louisiana Code of Civil Procedure article 863 provides that:

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

The factors to be considered in determining whether the attorney has made a reasonable factual inquiry are: the time for and the feasibility of an investigation; reliance on the client; reliance on the forwarding attorney; the complexity of the factual and legal issues, and the need for discovery. Diesal Driving Academy, Inc. v. Ferrier, 563 So.2d 898 (La.App. 2 Cir. 1990).

In this case, Attorney Swift faxed a letter to Attorney Delesdernier, threatening to sue him if he did not convince Mrs. Barnes to waive her rights in a matter that was pending in this court at that time. Swift then sent Attorney Delesdernier a draft petition initially naming Mrs. Cloud as the plaintiff, and Attorney Delesdernier as the defendant. When Attorney Deles-dernier informed him that venue would be improper in Caddo Parish, he improperly named Mrs. Barnes as codefendant to establish venue. After Attorney Delesdernier and Mrs. Barnes’s exceptions of no cause of action were granted, and their motion for sanctions was filed, Attorney Swift filed a motion to disqualify with no legal basis. During the hearing for the |nmotion to disqualify, he expressed his intent to file a motion for summary judgment in response to the motion for sanctions.

After reviewing the record, we agree with the trial court’s determination that there was a genuine issue of material fact regarding Attorney Delesdernier and Mrs. Barnes’s motion for sanctions. This motion was overflowing with factual support of their assertion that Attorney Swift’s actions had no legal basis. This lawsuit appears to be nothing more than a means to harass Attorney Delesdernier and Mrs. Barnes and increase their litigation expenses. For these reasons, the trial court did not err in denying Attorney Swift and Mrs. Cloud’s motion for summary judgment. This assignment of error is merit-less.

Sufficiency of the Evidence

In Attorney Swift and Mrs. Cloud’s third and final assignment of error, they assert that the trial court erred in granting judgments in favor of Mrs. Barnes and Attorney Delesdernier when they failed to provide any evidence that would support their claims.

A trial court’s factual findings as a basis for awarding (or for that matter, not awarding) sanctions for failure to comply with a statute requiring an attorney or litigant who signs a pleading to make an objectively reasonable inquiry into facts and law are reviewed under the manifestly erroneous or clearly wrong standard. Walters v. Klagholz, 43,944 (La.App. 2 Cir.1/14/09), 999 So.2d 1212; McKoin v. Harper, 37,984 (La.App. 2 Cir. 12/10/03), 862 So.2d 410. Once the trial court finds a violation of Art. 863 and imposes sanctions, the determination of the type and/or the amount of |12the sanction is reviewed on appeal utilizing the “abuse of discretion” standard. Walters, supra; Sanchez v. Liberty Lloyds, 95-0956 (La.App. 1 Cir. 4/4/96), 672 So.2d 268, writ denied, 96-1123 (La.6/7/96), 674 So.2d 972.

In his motion for sanctions, Attorney Delesdernier noted that Attorney Swift and Mrs. Cloud’s petition for damages was “not formed after reasonable inquiry, not grounded in fact, and not warranted by an existing good faith argument, and was filed for an improper purpose.” For those reasons, Attorney Delesdernier argued that pursuant to La. C.C.P. art. 863, Attorney Swift and Mrs. Cloud are liable to Attorney Swift and Mrs. Cloud for attorney fees, expenses, costs and sanctions.

The trial court stated in its reasons for judgment:

MR. SWIFT: No, no, no. I’m talking about basically if the Court — I guess the Court would need to give oral reasons for the judgment.
THE COURT: Yes, sir. I think the suit was frivolous.
MR. SWIFT: Okay. And that’s based upon the Court—
THE COURT: Based on reading the suit, reading the record, seeing the surrounding circumstances you shouldn’t have done it.

The trial court determined that Attorney Swift filed a frivolous lawsuit. Attorney Swift would not have filed such a lawsuit had he made a reasonable inquiry into the issue of pleadings, pursuant to La. C.C.P. art. 863, prior to filing them. As an officer of the court, Attorney Swift had a duty to do so. As we stated in the previous assignment this lawsuit was nothing more than a means to harass Attorney Delesdernier and Mrs. Barnes |isand increase their litigation expenses. For these reasons, we find that the trial court was not erroneous in granting judgments in favor of Attorney Delesdernier and Mrs. Barnes, and for the same reasons stated by it, we conclude that sanctions were proper. This assignment is meritless.

Sanctions

Attorney Delesdernier and Mrs. Barnes assert four assignments of error. In their first assignment, they argue that the trial court erred when it failed to award Attorney Delesdernier cost and expenses related to the “frivolous” lawsuit filed against him by Attorney Swift and Mrs. Cloud, including but not limited to travel costs. In the second assignment, Attorney Deles-dernier and Mrs. Barnes assert that the trial court erred when it did not award Attorney Delesdernier damages for time he spent as a party to defend the “frivolous suit” filed by Attorney Swift and Mrs. Cloud. In Attorney Delesdernier and Mrs. Barnes’s third assignment of error, they contend that the trial erred when it did not award Attorney Delesdernier legal fees to bring the motion to sanction. In Attorney Delesdernier and Mrs. Barnes’s fourth and final assignment of error, they allege that the trial court erred in not awarding Mrs. Barnes legal fees associated with the dismissal of the frivolous suit filed against her by Cloud and Swift. Since all four of Attorney Delesdernier and Mrs. Barnes’s assignments of error relate to the sanctions imposed by the trial court, we will discuss them together.

Once it is determined that sanctions are appropriate, the trial court has “considerable discretion as to the type and severity of sanctions to be imposed,” and we review those decisions under the abuse of discretion 114standard of review. Daigle v. City of Shreveport, 46,429 (La.App. 2 Cir. 10/5/11), 78 So.3d 753, writ denied, 2011-2472 (La.2/3/12), 79 So.3d 1027; Joyner v. Wear, 27,631 (La.App. 2 Cir. 12/06/95), 665 So.2d 634, writ denied, 1996-0040, 1996-0042 (La.02/28/96), 668 So.2d 370. Four factors have evolved which must be considered in arriving at an appropriate sanction award. They are: (1) the conduct being punished or sought to be deterred by this sanction; (2) the expenses or costs caused by the violation of the rule; (3) whether the costs or expenses are “reasonable” as opposed to self-imposed, mitigable, or the result of delay in seeking court intervention; and, (4) whether the sanction is the least severe sanction adequate to achieve the purpose of the rule under which it was imposed. Daigle, supra; Alombro v. Alfortish, 2002-1081 (La.App. 5 Cir. 4/29/03), 845 So.2d 1162, writ denied, 2003-1946 (La.10/31/03), 857 So.2d 485.

Louisiana Code of Civil Procedure article 863 authorizes an award of “reasonable” and not necessarily actual attorney fees. The goal to be served by imposing sanctions is not wholesale fee shifting, but correction of litigation abuse. Joyner v. Wear, supra.

In the present case, the record indicates that attorney Delesdernier was awarded sanctions for legal fees in the amount of $12,370.07. Mrs. Barnes was awarded sanctions in the amount of $2,500.00 for legal fees expended for the sanctions motion and court costs.

The court determined that Attorney Delesdernier’s $12,370.07 award, and Mrs. Barnes’s $2,500.00 award, were appropriate sanctions under the facts of this case to achieve the purpose of La. C.C.P. art. 863. Further, the [ 15trial court did not err in declining to award Attorney Deles-dernier travel costs, since jurisprudence reveals that no sanction has ever been awarded for that reason. After reviewing the record, we find that the trial court did not abuse its considerable discretion as the type and severity of sanctions to be awarded. The trial court carefully considered the facts and arguments of this case and appropriately fashioned the sanctions against Attorney Swift and Mrs. Cloud. These assignments of error have no merit.

CONCLUSION

Considering the foregoing, we affirm the judgment. Costs of this appeal are assessed to the appellants, Attorney Swift and Mrs. Cloud.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, MOORE, LOLLEY and PITMAN, JJ.

11 Rehearing denied.

      . On appeal, this court determined that Mrs. Barnes had usufruct of the Mallard property, so Mrs. Cloud was not entitled to an offset for rent. It determined that Mrs. Barnes’s total award was $59,165.32, and deducted $11,453.82, which is the amount that Mrs. Cloud has already paid her. The remainder due to Mrs. Barnes was $47,711.50. This court affirmed the trial court’s judgment in all other respects. See Barnes v. Cloud, 46,685 (La.App. 2 Cir. 12/14/11), 82 So.3d 463.