author: CONERY, Judge.

text:
    Peter Joseph WHITBECK, et ux. v. Robert Joseph CHAMPAGNE, Jr., et ux.
    No. 14-245.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Raymond B. Landry, Richard L. Traína, Moliere, Flanagan & Landry L.L.C., Me-tairie, Louisiana, for Defendants/Appellants, Robert Joseph Champagne, Jr., Charlet Ann Champagne.
    John M. Veron, J. Rock Palermo, III, Michael Glenn Hodgkins, Turner D. Brum-by, Veron, Bice, Palermo & Wilson, L.L.C., Lake Charles, Louisiana, for Plaintiffs/Ap-pellees, Peter Joseph Whitbeck, Marissa Jill Whitbeck.

      Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   CONERY, Judge.

11 Robert and Charlet Champagne (Champagnes) appeal the trial court’s ruling granting a motion for summary judgment in favor of Peter and Marissa Whit-beck (Whitbecks). The trial court found the Champagnes in default of a July 2, 2012 Louisiana Residential Agreement to Buy and Sell (Purchase Agreement), wherein the Champagnes agreed to purchase immovable property owned by the Whitbecks. The trial court ordered the Champagnes to specifically perform under the terms and provisions of the Purchase Agreement and pay the purchase price of $450,000.00 to the Whitbecks. The trial court also found that the Whitbecks were entitled to retain the $2,500.00 deposit given by the Champagnes and awarded $17,700.00 in attorney fees plus $2,764.35 in costs to the Whitbecks, with judicial interest from the date of judgment. The trial court denied the Whitbecks motion for summary judgment seeking an award of broker or realtor fees. The Whitbecks have answered the appeal and are seeking additional attorney fees and costs, an award of broker or realtor fees, and attorney fees and costs in connection with the appeal. For the following reasons, we affirm and award $2,500.00 in attorney fees to the Whitbecks for work done on this appeal.

FACTS AND PROCEDURAL HISTORY

The Whitbecks’ home at 111 Seagull Lane, Big Lake, Louisiana 70607 (Big Lake home) was listed on the market for sale. The Champagnes negotiated with lathe Whitbecks for the purchase of the Big Lake home and the parties subsequently agreed to a cash sale price of $450,000.00. The initial offer was made to the Whitbecks on June 30, 2012. The Whitbecks accepted the Champagnes’ offer in writing by signing the Purchase Agreement on July 2, 2012.

Under the specific provisions of the Purchase Agreement, the Champagnes had a fifteen day period to fully inspect the Big Lake home and were allowed to conduct any inspections they deemed necessary. The inspection period began to run on July 3, 2012, the day after the Whitbecks accepted the Champagnes’ cash offer, and ended on July 17, 2012.

During the fifteen day inspection period, the Champagnes admit they were given free rein to inspect the Big Lake home and conducted at least three viewings or inspections of the home. One of the inspections was conducted by an engineer with Spell Structural Consulting, L.L.C., and included a structural review of both the interior and exterior of the Big Lake home. The conclusion of the engineering inspector was that the interior of the Big Lake home was “in good condition and no structurally deficient issues were observed with interior finishes.”

Lin addition, the Whitbecks were required to disclose the following on the Property Disclosure Form, “Has there been property damage related to the land or the improvements thereon, including, but not limited to, fire, windstorm, flood, hail, lighting, or other property damage?” The Whitbecks responded “yes[,J” and that the repairs related to those damages, defects, and/or other conditions had been made to the Big Lake home.

During the fifteen day inspection period, the Champagnes asked for additional information about the repairs made, especially those made to the Big Lake home after Hurricane Ike. The Whitbecks responded on July 10, 2012, with a detailed listing and dates of when approximately ten repairs were made to the Big Lake home. The Whitbecks’ response was sent to the Champagnes a week before the end of the fifteen day inspection period.

Under the provisions of the Purchase Agreement, if the Champagnes found any deficiencies in the Big Lake home within the fifteen day inspection period, they could “elect in writing, to terminate the Agreement and declare the Agreement null and void,” or “indicate in writing the deficiencies and desired remedies,” giving the Whitbecks as the sellers seventy-two hours to respond in writing as to their willingness to remedy those deficiencies. The Champagnes did not exercise either of these options within the fifteen day inspection period.

Under the provisions of the Purchase Agreement, the Champagnes’ silence was presumed acceptance once the fifteen day inspection period expired, as the |4Purchase Agreement stated that “FAILURE TO MAKE INSPECTIONS OR TO GIVE WRITTEN NOTICE OF DEFICIENCIES AND DESIRED REMEDIES TO SELLER (OR SELLER’S DESIGNATED AGENT) AS SET FORTH IN LINES 141 THROUGH 155 WITHIN THE INSPECTION PERIOD SHALL BE DEEMED AS ACCEPTANCE BY BUYER OF THE PROPERTY’S CURRENT CONDITION.”

In addition, under the terms of the Purchase Agreement, the Champagnes agreed to accept the Big Lake home in an “ ‘as is’ condition” and to “waive, relieve and release” the Whitbecks from any further actions for redhibition and reduction of the sale price. The Champagnes also acknowledged the sale of the Big Lake home was to be made “without warranty of fitness for ordinary or particular use” and that both parties agreed that this language was to be part of the Act of Sale.

Based on the Champagnes’ silence and deemed acceptance of the condition of the Big Lake home, the parties proceeded with the sale process. They mutually agreed to close the sale of the Big Lake home on Monday, July 28, 2012. However, on the morning of July 23, 2012, the Champagnes informally notified the Whitbeeks of their intention not to finalize the sale. The Champagnes indicated they had received information from a third-party that the Big Lake home had a “mold and mildew issue.” This informal notification by the Champagnes of a | ¿potential “mold and mildew issue” was the first time the Whit-becks were notified that the Champagnes had any reservations about either the condition of the Big Lake home or finalizing the sale of the property.

The next day, July 24, 2012, the Champagnes formally notified the Whitbeeks of their intention not to purchase the Big Lake home. The Champagnes gave as their only reason that they had elected “not to move forward with the purchase of the above mentioned property on the basis of non disclosure by the sellers.” They further requested “release of the escrowed funds of $2,500.00.” In response, and in order to dispel the third-party rumor of mold and mildew issues, the Whitbeeks gave the Champagnes complete freedom to take whatever steps they deemed necessary to satisfy themselves that the Big Lake home was free from mold and mildew. This offer by the Whitbeeks to the Champagnes was confirmed by Mr. Champagne under oath. He testified that his own real estate agent, Mrs. Rhonda Gas-pard, informed him that the Whitbeeks were willing to allow the Champagnes to conduct all inspections necessary to confirm that mold was not present in the Big Lake home. In an effort to break the impasse between the parties and to impress on the Champagnes the seriousness of their actions in refusing to complete the sale as per the Purchase Agreement, Mrs. Gaspard, in a July 23, 2012 correspondence, urged the Champagnes to “investigate further” in order to determine if there was a real basis for the third-party mold rumor. She also suggested that the Champagnes have someone check with a moisture meter for any moisture in the walls or tear out the sheetrock in the suspected area.

Mrs. Gaspard also told the Champagnes that her broker, Tim Flavin, was of the opinion that the Champagnes were contractually bound to close on the Big Lake home unless they could prove there was a mold problem and that it had been | (¡covered up by the Whitbeeks. Mrs. Gas-pard further informed the Champagnes that the Whitbeeks intended to seek specific performance of the Purchase Agreement. She then suggested, once again, that the sheetrock be torn out in the area in question and that an expert be called to confirm the absence or presence of mold or any structural defects.

The Champagnes never took advantage of the Whitbecks’ offers to conduct any and all inspections necessary to satisfy themselves that the Big Lake home was mold free. It is undisputed that the Champagnes never hired anyone to conduct a mold assessment of the Big Lake home. Due to the Champagnes failure to address the mold rumor, and in an attempt to resurrect the sale, the Whitbecks hired them own environmental professional, Booth Environmental Services, LLC (Booth). Booth performed a “Moisture and Mold Assessment Sampling” and a “MOLD ASSESSMENT REPORT,” dated August 6, 2012. The report, which was introduced into evidence, contained two opinions. In the first Booth opinion, the Booth inspector states, “according to the air samples, the indoor area is not considered to be elevated at the time of the inspection.” The Booth opinion also states, “there was also no visible evidence observed by the Booth Environmental staff to suggest that an issue existed with elevated mold at the time of inspection.”

The Whitbecks sent a copy of the Booth report to the Champagnes on August 8, 2012, and insisted that they finalize the sale. The Champagnes maintained their position and refused to close the sale of the Big Lake home, despite taking no steps to provide evidentiary support for their contention that the Whitbecks failure to disclose a mildew and mold problem in the Big Lake home was a breach of the Purchase Agreement.

|7Ms. Rhonda Gaspard, the Champagnes’ realtor, requested that the Champagnes obtain an affidavit from Mr. Stanley Schiele, a local contractor, and the supposed “third-party source” of the mold rumor at the Big Lake home. The affidavit was not forthcoming until two months after the initial July 23, 2012 closing date for the sale of the property. Mr. Schiele’s affidavit failed to support the Champagnes’ contention that the WTiitbecks had failed to disclose a mold problem in the Big Lake home and only stated there was “potential for mold.” Mr. Schiele also testified via deposition that despite working as a contractor in the area for a number of years, he “never encountered any black mold in the Big Lake area.”

The Whitbecks filed suit against the Champagnes on September 5, 2012, seeking specific performance of the Purchase Agreement, retention of the Champagnes’ deposit, both attorney and broker fees, and costs. The Whitbecks claimed that the Champagnes had breached the Purchase Agreement by failing to complete the sale on the Big Lake home. The Champagnes reconvened seeking the return of their deposit, along with costs and attorney fees.

At the close of discovery, during which the depositions of the parties, the realtors and Mr. Schiele, the source of the third-party mold rumor, were taken, the IsWhitbecks filed a motion for summary judgment. A hearing on the Whitbeeks’ motion was held on July 24, 2013. After considering all the depositions, pleadings, and affidavits in support of and in opposition to the motion, the trial court granted the Whitbeeks’ motion for oral reasons assigned. The trial court ruled that the Whitbeeks were entitled to specific performance of the Purchase Agreement and awarded judgment in the amount of $450,000.00 to the Whitbeeks in accordance with the contract. The trial court also allowed the Whitbeeks to retain the $2,500.00 deposit without credit toward the sales price, plus costs, and indicated it would make an award of attorney fees. The court ordered briefing and set an additional hearing for September 4, 2013, on both the attorney and broker fees issue.

Counsel for the Whitbeeks submitted a detailed attorney fees claim for $30, 850.00. After receipt of post-motion briefing, the trial court held the September 4, 2013 hearing as scheduled. On September 30, 2013, the trial court issued its written ruling and awarded the Whitbeeks $17,700.00 in attorney fees, approximately half the amount claimed, plus costs of $2,764.35. The trial court also denied the Whitbeeks’ request for broker fees. A final judgment was signed on October 29, 2013, from which the Champagnes have filed a timely suspensive appeal. The Whitbeeks have answered the appeal and seek an increase of the attorney fees award to $30,850.00, the original amount claimed, an award of broker’s fees, plus attorney fees and costs for the appeal.

ASSIGNMENTS OF ERROR

The Champagnes argue the trial court erred by granting the Whitbeeks’ motion for summary judgment and ordering specific performance of the Purchase Agreement.

lain their answer to appeal, the Whit-becks argue that the trial court erred in not granting the total amount of attorney fees sought and in failing to award the Whitbeeks broker or realtor fees. The Whitbeeks seek an additional award of attorney fees and costs for the appeal.

LAW AND DISCUSSION

Standard of Review

Summary judgments are reviewed de novo, applying the same standard to the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp,, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Summary judgment is favored by law and provides a vehicle by which the just, speedy, and inexpensive determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is required to render summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2). In this case, all documentation in support of and in opposition to the Whitbeeks motion for summary judgment was properly admitted into evidence at the July 24, 2013 hearing. Though heard as a motion for summary judgment, it appears that the parties in effect introduced the entirety of the evidence by way of depositions, affidavits, and exhibits, and the Court, after considering all the evidence submitted at the hearing, made a ruling that no material facts remained for trial.

In 1997, the legislature enacted La.Code Civ.P. art. 966(C)(2), which clarified the burden of proof for a summary judgment proceeding. The initial burden of proof remains with the mover to show that no genuine issue of material | infact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a genuine material factual issue remains. Id. “[T]he failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 7 (La.2/20/04), 866 So.2d 228, 233.

When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art. 967(B). “A fact is ‘material’ when its existence or nonexistence may be essential to [a] plaintiffs cause of action under the applicable theory of recovery.” Smith, 639 So.2d at 751. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id. (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), writ denied, 596 So.2d 211 (La.1992)).

In determining whether a fact is material, we must consider the substantive law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La.3/23/01), 788 So.2d 427. In this case, the substantive law of contracts is applicable.

Questions of contractual interpretation are questions of law, which are subject to a de novo standard of review. Mitchell v. Patterson Ins. Co., 00-612 (La.App. 3 Cir. 12/6/00), 774 So.2d 366. Contracts have the force of law between the parties, and the courts are bound to interpret them according to the common intent of the parties. La.Civ.Code arts. 1983 & 2045. If the words of the contract are clear, unambiguous, and lead to no absurd consequences, the court need not Inlook beyond the contract language to determine the true intent of the' parties. La.Civ. Code art. 2046. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La.Civ.Code art. 2050. Whether or not a contract is ambiguous is a question of law. La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La.1/14/94), 630 So.2d 759.

Terms of the Purchase Agreement

If the terms of the Purchase Agreement at issue- are “clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La.Civ.Code art. 2046.” Gonsoulin v. Pontiff, 11-177, p. 5 (La.App. 3 Cir. 10/5/11), 74 So.3d 809. In this case, the Purchase Agreement at issue is the standard form required by the Louisiana Real Estate Commission in connection with the sale and or purchase of a residential property. Thus, the trial court correctly found in its reasons for granting the Whitbecks’ motion for summary judgment that the contract was clear and unambiguous and therefore the law between the parties:

The Court finds that the contract in this matter is clear and unambiguous. It’s the law between the parties. The depositions confirm that the parties understood the contents of the contract. And it’s clear from the depositions and the contract that the Champagnes breached their duty under the contract.
So the Court’s going to grant the motion for summary judgment in favor of the plaintiffs; order specific performance; order the sellers retain the deposit; award attorney fees to be determined at a hearing, at a date and time set today. And the contract says, “May order broker fees.” I will determine at that hearing whether broker fees will be awarded.

The Champagnes argue that there are genuine issues of material fact that preclude summary judgment in this case. However, in light of the depositions and | ^exhibits submitted by the Whitbecks and the clear and unambiguous wording of the Purchase Agreement, we cannot agree. When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art. 967(B).

The Champagnes failed to produce any expert testimony to support their claim that the Whitbecks had failed to disclose the presence of mold or any structural defect. Mr. Champagne testified in his deposition, after a discussion about the mold inspection commissioned by the Whitbecks, that they had “no scientific evidence to refute” the conclusions of Booth that there was no mold present in the Big lake home.

Neither the affidavit nor the deposition testimony of Mr. Schiele supports the Champagnes’ claim that the Whitbecks failed to disclose the presence of mold. Mr. Schiele testified under oath that water spots he observed on a ceiling in one of the rooms only have the “potential for mold” and that he had never encountered “black mold” in the Big Lake area.

The Champagnes also argue the Whit-becks failed to disclose that a window had been replaced in the same room which had water spots on the ceiling. This issue was thoroughly discussed by Mr. Schiele in his deposition as a “potential” source of mold. However, Mr. Schiele also confirmed that he never saw mold in the Big Lake home.

The Property Condition Disclosure Form was not a part of the record, but we | ^allowed the parties to supplement the record with the form and have reviewed it. The alleged undisclosed repairs were thoroughly discussed in the deposition of Mr. Champagne wherein he admitted that he had no evidentiary support that any alleged undisclosed repairs by the Whit-becks met the definition of a “Known defect” on the Property Disclosure Form. A “Known defect” is defined in the Property Disclosure Form, as “a condition found within the property that was actually known by the seller and that results in one or all of the following.” The “Known defect” either presents a “substantial adverse effect on the value of the property,” “significantly impairs the health or safety of any future occupants[,]” or “significantly shortens the expected normal life of the premises” if the repairs are not made.

Based on the uncontradicted evidence submitted at the motion for summary judgment, and the clear terms of the Purchase Agreement, we find there is no genuine issue of material fact to defeat the Whitbecks’ motion for summary judgment.

The Champagnes were given carte blanche to inspect the house by the Whit-becks, who asserted all through this process that they had nothing to hide. The Champagnes were free to take any measures necessary to assure there was no mold or structural defect present in the Big Lake house, including tearing out the sheetrock in the bedroom in question, as recommended by their realtor. The Champagnes failed to do so.

The Champagnes have failed to present any documentary evidence or testimony to create a genuine issue of material fact sufficient to defeat the motion 114for summary judgment sought by the Whitbeeks. We affirm the trial court’s ruling granting summary judgment to the Whitbeeks for the Champagnes breach of the Purchase Agreement.

Stipulated Damages in the Purchase Agreement

The Champagnes argue that the trial court erred in granting specific performance in favor of the Whitbeeks and ordering them to execute the Purchase Agreement for the cash price of $450,000.00. The Purchase Agreement clearly states that “specific performance” is one of the three options available to the Seller when the Buyer breaches the Purchase Agreement. The Purchase Agreement states that the seller may “demand and sue for any of the following: 1) Termination of this Agreement; 2) Specific Performance; 3) Termination of this Agreement and an amount equal to 10% of the Sale Price as stipulated damages.”

The Champagnes argue that the trial court is required to choose the option to be exercised in the event of a breach of the Purchase Agreement. However, the clear language of the Purchase Agreement provides, “SELLER shall have at SELLER’S option the right” to choose the remedy for the Champagnes’ breach of the Purchase Agreement. Documentation presented in support of the motion for summary judgment clearly provides that from the date of the closing when the Champagnes refused to go through with the sale, the Champagnes were on notice from both their broker,’ Tim. Flavin, and their realtor, Rhonda Gaspard, that the Whitbeeks intended to seek specific performance of the Purchase Agreement should the Champagnes choose not to perform.

Louisiana Civil Code Article 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 |ir,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.

(Emphasis added.)

In Charter Sch. of Pine Grove v. St Helena Parish Sch. Bd., 07-2238, p. 14 (La.App. 1 Cir. 2/19/09), 9 So.3d 209, 222, our sister circuit succinctly discussed La.Civ.Code art. 1986 and the jurisprudence applicable to a breach of a contract that contains a provision for specific performance:

Upon an obligor’s failure to perform an obligation to do, the granting of specific performance is at the discretion of the court. See LSA-C.C. art. 1986. Under Louisiana’s civil law system, 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. Lombardo v. Deshotel, 94-1172 (La.11/30/94), 647 So.2d 1086, 1090; see LSA-C.C. art. 1986. 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. J. Weingarten, Inc. v. Northgate Mall, Inc., 404 So.2d 896, 901 (La.1981).

The Champagnes argue that the trial court erred in enforcing the Whitbeeks’ claim for specific performance for the agreed upon sum of $450,000.00 cash, as it would be “impracticable” to force the Champagnes to acquire ownership of the Big Lake home. After the purchase, if the alleged defect of mold was discovered, the discovery would lead to another lawsuit, an action in redhibition, pursuant to La.Civ. Code art. 2520.

However, under the explicit terms of the Purchase Agreement, the Champagnes agreed, “the Property being sold and purchased is to be transferred in ‘as is’ condition and further BUYER does hereby waive, relieve and release 11f,SELLER from any claims or causes of action for redhibition pursuant to Louisiana Civil Code Article 2520 et seq. and Article 2541 et seq. or for reduction of Sale Price pursuant to Louisiana Code Article 2541 et seq.” They also agreed, “[t]hat this sale is made without warranty of fitness for ordinary or particular use pursuant to the Louisiana Civil Code Article 2524. SELLER and BUYER agree that this clause shall be made a part of the Act of Sale.”

In Ross v. Premier Imports, 96-2577 (La.App. 1 Cir. 11/7/97), 704 So.2d 17, 21, unit denied, 97-3035 (La.2/13/98), 709 So.2d 750, the first circuit provided that a seller may “limit his obligations as seller, providing he does so clearly and unambiguously.” In Keaty v. Moss Motors, Inc., 93-1452 (La.App. 3 Cir. 6/1/94), 638 So.2d 684, 687, writ denied, 94-2211 (La.11/11/94), 644 So.2d 399, a panel of this court specified that for the conditions necessary for the waiver to be effective, the contractual waiver must, “(1) be written in clear and unambiguous terms; (2) be contained in the contract; and, (3) either be brought to the attention of the buyer or explained to him.”

The trial court specifically found that the contract was “clear and unambiguous” and that it was “the law between the parties.” In addition, the trial court found that “the depositions confirm the parties understood the contents of the contract.” Based on the trial court’s findings that there was no genuine issue of material fact, and our review of the Purchase Agreement and the record, we find that the uncontradicted facts support the conclusion that the provisions of the contract are enforceable against the Champagnes and present no bar to the remedy of specific performance granted by the trial court. This conclusion is further | ^supported by the Champagnes’ failure to produce any evidence to support their contention that the Big Lake home contained mold or any defect that would qualify as a basis for refusal to honor the Purchase Agreement.

Louisiana Civil Code Article 2005 allows parties to “stipulate the damages to be recovered in case of nonperformance, defective performance, or delay in performance of an obligation.” Further, “[T]hat stipulation gives rise to a secondary obligation for the purpose of enforcing the principal one.” Louisiana Civil Code Article 2012 also instructs, “Stipulated damages may not be modified by the court unless they are so manifestly unreasonable as to be contrary to public policy.” Neither party has argued that the stipulated damages are “so manifestly unreasonable as to be contrary to public policy.” Id.

The parties agreed in the Purchase Agreement to a cash price for the Big Lake home of $450,000.00. The trial court granted specific performance to the Whit-becks based on the stipulated damage provisions in the Purchase Agreement and ordered the Champagnes to perform according its terms, finding the Purchase Agreement was “the law between the parties.”

In Stumpf v. Richardson, 99-415, p. 5 (La.App. 5 Cir. 11/30/99), 748 So.2d 1225, 1227-28, the trial court found that the contract included a clause for specific performance, that the terms of the contract had been met, and thus granted specific performance to the sellers and ordered the buyer to pay the agreed to price of $525,000.00. The buyer refused to complete the sale for the negotiated price of $525,000.00, the value of the property in the lender’s appraisal, after having the property appraised at $378,000.00 in her separate appraisal. The court in Stumpf based its ruling on City of Kenner v. Jumonville, 97-125 (La.App. 5 Cir. 8/27/97), 701 So.2d 223, 228, writ denied, 97-2890 (La.1/30/98), 709 So.2d 718, cert. denied, 524 U.S. 953, 118 S.Ct. 2371, 141 L.Ed.2d 739 (1998), and stated, “Courts ‘cannot undermine a contract simply because it was a bad deal, or is believed to be, for one of the parties.’ ”

The same principle applies in this case. We agree with the trial court that specific performance was properly granted as a remedy to the Whitbecks for the Champagnes’ failure to perform under the clear terms of the Purchase Agreement.

Duty to Mitigate

The Champagnes argue that the Whitbecks had a duty to mitigate the stipulated damages by continuing to market their Big Lake home to try and find another buyer for the property. Louisiana Civil Code Article 2002 provides, “An obligee must make reasonable efforts to mitigate the damage caused by the obligor’s failure to perform. When the obligee fails to make these efforts, the obligor may demand that the damages be accordingly reduced.” In Lombardo v. Deshotel, 94-1172 (La.11/30/94), 647 So.2d 1086, the supreme court discussed the conflict between La.Civ.Code art. 2002 and stipulated damage provisions in a contract. In Lombardo,' the supreme court held that La. Civ. Code art. 2002 was not applicable and there was no duty on the part of the obligee to mitigate his damages when stipulated damages were part of the contractual obligation of the obligor:

The obligee can recover no more nor less than the stipulated damages regardless of the amount of damage or the consequences caused by the obligee’s neglect. Consequently, because the seller, Lombardo, could not suffer a reduction of her stipulated damages and therefore owed no duty to mitigate her damage to the purchaser.

Lombardo, 647 So.2d at 1092 (emphasis added).

We agree that the trial court correctly interpreted the terms of the Purchase Agreement providing for specific performance by requiring the Champagnes to | ,3perform under the terms of the Purchase Agreement and purchase the Big Lake home for the agreed to cash price of $450,000.00.

Remaining Damages Awarded by the Trial Court

The Purchase Agreement also provides, “Further, SELLER shall be entitled to retain the Deposit. The prevailing party to any litigation brought to enforce any provision of this Agreement shall be awarded their attorney fees and costs.

The BUYER may also be liable for Broker fees.”

The trial court, under the provisions of the Purchase Agreement, correctly awarded the $2,500.00 deposit to the Whitbecks without a reduction of the purchase price of the Big Lake home. Also, under the terms of the Purchase Agreement, the trial court awarded the Whitbecks their requested costs of $2,764.35. The Champagnes did not brief either of these issues to this court on appeal and therefore pursuant to Uniform Rules — Courts of Appeal, Rule 2-12.4, these issues are considered abandoned.

The Whitbecks’ Answer to Appeal

The Whitbecks have answered the appeal and seek the following, “(i) a modification of the trial court judgment to increase the award of attorneys’ fees, (ii) a modification and/or reversal of the judgment to grant an award of broker fees, and (iii) an award of attorneys’ fees and costs incurred in connection with this appeal.”

Attorney Fees

After granting the Whitbecks’ motion for summary judgment, the trial court deferred ruling on the attorney fee and broker’s fee issues and requested that counsel submit a post hearing memoranda on these issues. The trial court then heard oral argument on these issues at a hearing on September 4, 2018. In support li>nof their request for attorney fees and costs, Turner D. Brumley, counsel for the Whitbecks, had submitted a memorandum and a sworn affidavit with, documentation supporting one hundred and eighteen hours of work on the Whitbecks’ lawsuit for a total of $30,850.00 in attorney fees and $2,764.35 in costs.

In their opposition memorandum, counsel for the Champagnes claimed that the amount of attorney fees “requested by the Whitbecks for attorney fees is about twice as much as would be appropriate under the circumstances revealed by the record of this proceeding.” Counsel for the Champagnes did not challenge the hourly rate of the Whitbecks’ attorneys, but argued in its memorandum, without any documentation, that the Whitbecks’ attorneys should have only spent half as much time on the case as claimed.

In response, at oral argument, counsel for the Whitbecks asked that the Champagnes’ attorneys submit their bills in-camera and thus allow the trial court to compare the attorney fees for both parties to see if the Whitbecks’ attorneys should have only spent fifty hours on the case. The trial court then allowed the attorneys for the Champagnes ten days to provide the court with “a detailed accounting of their attorney fees in this matter,” for an in-camera inspection.

After the requested submission from counsel for the Champagnes, the trial court issued a ruling on September 30, 2013. The Champagnes’ attorney fees accounting is not in the record before us and cannot be considered, as provided in La. Code Civ.P. art. 2164. The trial court stated as its basis for reducing by almost half the attorney fees requested by the Whitbecks, “After review of the attorney fees requested and incurred by the parties in this case and the jurisprudence on reasonable attorney fees, the Court will award $17,700 as a reasonable attorney fee to the plaintiffs; expenses incurred by the plaintiffs in the amount of $2,764.35.”

|⅞, In Covington v. McNeese State Univ., 12-2182, p. 6 (La.5/7/13), 118 So.3d 343, 348, the supreme court held, “The appellate court reviews an award of attorney’s fees for an abuse of discretion. The district court’s factual determinations will not be set aside absent manifest error. Stobart v. State, Dep’t of Trans. and Dev., 617 So.2d 880, 882 n. 2 (La.1993).”

The supreme court in State, Department of Transportation and Development v. Williamson, 597 So.2d 439, 441-42 (La.1992), outlined the factors that must be considered by a court in reviewing an award of attorney fees:

Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge.

The trial court was in the best position to determine the fairness of the award of attorney fees. ' After reviewing the Champagnes’ documentation, which is not in the record before us, the trial court exercised its much discretion and awarded attorney fees of $17,700.00 to the Whitbecks. We cannot say that the amount so awarded was an abuse of the trial court’s discretion.

Broker Fees

The Purchase Agreement states, “The BUYER may also be liable for Broker fees.” The Whitbecks seek $26,000.00 in broker/realtor fees based on the sale price of the Big Lake home in the Purchase Agreement, the delay occasioned by the Champagnes’ breach of the terms of the Purchase Agreement, and the necessity of filing this litigation.

12gThe trial court declined to award broker’s fees and stated in its ruling “Finally, I will deny the plaintiffs’ request for broker fees in this matter.” The Purchase Agreement, which controls, allows the trial court the discretion to award broker’s fees. We cannot say that the trial court abused its considerable discretion.

Attorney Fees on Appeal

The Champagnes argue that the Whitbecks are not entitled to attorney fees for work on the appeal. However, this circuit specifically held in McFadden v. Import One, Inc., 10-952, p. 16 (La.App. 3 Cir. 2/9/11), 56 So.3d 1212,1223:

When an award for attorney’s fees is granted at a lower court level, the recipient of those fees is entitled to additional fees for work done on appeal. This keeps the appellate judgment consistent with the underlying judgment. Wilczewski v. Brookshire Grocery Store, 08-718, p. 18 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ denied, 09-456 (La.4/13/09), 5 So.3d 170.

Based on the work performed by counsel for the Whitbecks on appeal, we find that $2,500.00 is a reasonable award. We therefore grant the request of the Whit-becks for attorney fees on appeal and award attorney fees in the amount of $2,500.00, plus all costs of the appeal.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment in favor of Peter and Marissa Whitbeck and against Robert and Charlet Champagne. We find the Champagnes in breach of the June 30, 2012 Purchase Agreement and order the Champagnes to specifically perform by paying $450,000.00 in cash under the terms and provisions of the Purchase Agreement. We affirm the trial court’s judgment allowing the Whitbecks to retain the $2,500.00 deposit, without an offset against the sales price, all with legal interest from the date of judgment, plus the award of costs to the Whitbecks in the amount of $2,764.35. We affirm the trial | ^court’s award of $17,700.00 in attorney fees and we award the Whitbecks $2,500.00 as attorney fees for work on the appeal. We assess all costs of this appeal to Robert and Charlet Champagne.

AFFIRMED.

      . Louisiana Revised Statutes 37:1449.1, effective January 1, 2011, requires all licensed real estate agents to use this form in connection with an offer to buy or sell residential real estate. Louisiana Revised Statutes 37:1449.1 provides:
      A licensee representing either the buyer or seller of residential real property shall complete the purchase agreement form prescribed by the Louisiana Real Estate Commission in making an offer to purchase or sell residential real property. No person shall alter the purchase agreement form; however, addendums or amendments to the form may be utilized.

      . Lines 141-150 of the Purchase Agreement provide:
      Buyer shall have an inspection period of (15) calendar days, commencing the first day after acceptance of this agreement wherein, BUYER may, at BUYER’S expense, have any inspections made by experts or others of his choosing. Such inspections may include, but are not limited to, inspections for termites and other wood destroying insects, and/or damage from same, molds, and fungi hazards, and analysis of synthetic stucco, drywall, appliances, structures, foundations, roof, heating, cooling, electrical, plumbing systems, utility and sewer availability and condition, out-buildings, square footage, school district, flood zone classifications, current zoning and/or subdivision restrictive covenants and any items addressed in the SELLER’S Property Disclosure Document. All testing shall be nondestructive testing. SELLER agrees to provide the utilities for inspections and immediate access. If BUYER is not satisfied with the condition of the Property the BUYER may choose one of the following options within the inspection periodf.]

      . Lines 152-155 of the Purchase Agreement provide:
      Option 1: BUYER may elect, in writing, to terminate the Agreement and declare the Agreement null and void; or Option 2: BUYER may indicate in writing the deficiencies and desired remedies and SELLER will within seventy two (72) hours respond in writing as to SELLER’S willingness to remedy those deficiencies (“SELLER’S Response”).

      . Lines 189-195 of the Purchase Agreement provide:
      B. SALE "AS IS” WITHOUT WARRANTIES: SELLER and BUYER hereby acknowledge and recognize that the Property being sold and purchased is to be transferred in "as is” condition and further BUYER does hereby waive, relieve and release SELLER from any claims or causes of action for redhibition pursuant to Louisiana Civil Code Article 2520 et seq. and Article 2541 et seq. or for reduction of Sale Price pursuant to Louisiana Civil Code Article 2541 et seq. Additionally, BUYER acknowledges that this sale is made without warranty of fitness for ordinary or particular use pursuant to Louisiana Civil Code Article 2524. SELLER and BUYER agree that this clause shall be made a part of the Act of Sale.

      . Lines 228-232 of the Purchase Agreement provide:
      DEFAULT OF AGREEMENT BY BUYER: In the event of any other default of this agreement by BUYER except as set forth in lines 103 through 122, SELLER shall have at SELLER'S option the right to declare this Agreement null and void with no further demand, or to demand and sue for any of the following:
      1) Termination of this Agreement; 2) Specific Performance; 3) Termination of this Agreement and an amount equal to 10% of the Sale Price as stipulated damages.

      . Lines 234-236 of the Purchase Agreement provide, "Further, SELLER shall be entitled to retain the Deposit. The prevailing party to any litigation brought to enforce any provision of this Agreement shall be awarded their attorney fees and costs. The BUYER may also be liable for Broker fees.”

      . The Property Disclosure Form is now required by the Louisiana Real Estate Commission as provided by La.R.S. 9:3196 et seq. The form used was in compliance with the statute.

      . Louisiana Civil Code Article 2548, amended by La. Acts 1993, No. 841 § 1, codified the jurisprudential requirements and became effective January 1, 1995.


source: Caselaw Access Project

license: Public Domain

text:
    Dominique FLOYD, et al. v. CITY OF CARENCRO, et al.
    No. 14-268.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Harold Dewey Register, Jr., A professional Law Corporation, Lafayette, Louisiana, for Plaintiff/Appellant, Dominique Floyd, K.F., N.F.
    John Fayne Wilkes, III, Joy C. Raba-kaus, Tonya R. Smith, Ray R. Lucas, Kathy L. Smith, Brenda L. Mistrot, David C. Clarke, Borne & Wilkes, L.L.C., Lafayette, Louisiana, for Defendant/Appellee, City of Carenero, Chief Carlos Stout, in his Official Capacity as Chief of Police of the City of Carenero.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   CONERY, Judge.

_JjIn this case, the plaintiff, Dominique Floyd (Mr. Floyd), seeks individual damages and damages on behalf of his minor children K.F. and N.F. resulting from an incident whereby Mr. Floyd was detained by officers from the Carenero Police Department who were responding to a “domestic in progress” call. After a trial on the merits, the trial cóurt found in favor of the defendants, the City of Carenero and Chief Carlos Stout, in his Official Capacity as Chief of Police of the City of Carenero, and dismissed plaintiffs’ case with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 3, 2011, Corporal Gregory Do-mingue and Officer Kaylon Begnaud, officers employed by the City of Carenero Police Department, responded to a 911 call from Anastasia Zenon (Ms. Zenon) seeking assistance for a “domestic in progress.”

Upon arrival at the Zenon home, the two officers questioned Ms. Zenon, who reported a dispute in which she was shoved by her ex-boyfriend, James Coleman. According to Ms. Zenon, Mr. Coleman was driving a green Tahoe with a paper license plate on his previous visit to her apartment, and Mr. Coleman’s residence was right down the street in another part of the apartment complex. Both officers testified that upon reaching the scene of the alleged domestic incident, “Ms. Zenon pointed to a dark SUV passing on the street directly in front of them.” Ms. Zen-on indicated that the individual driving the vehicle was James Coleman, the alleged perpetrator.

Although Ms. Zenon initially testified at trial she did not identify the dark SUV to the officers as the vehicle of the alleged perpetrator, Ms. Zenon’s | ^identification of the dark SUV to the officers is documented in her May 3, 2011 written statement. Ms. Zenon’s identification of the dark SUV as the vehicle owned by Mr. Coleman is further supported by the trial testimony of Ms. Zenon’s mother, Tabatha Zenon. Tabatha Zenon testified that she heard her daughter identify the dark SUV to the officers as the vehicle belonging to her ex-boyfriend, James Coleman.

Corporal Domingue immediately got into his police unit and followed the SUV to a parking space in the parking lot of an adjacent apartment building and parked his unit behind the SUV. Corporal Do-mingue approached the driver’s side window and repeatedly asked the driver, Mr. Floyd, to hang up his cell phone, exit the vehicle, and provide identification. All of Corporal Domingue’s requests were refused. At this point, Corporal Domingue radioed for back-up from Officer Begnaud and other officers in the vicinity.

At- trial, Mr. Floyd testified that he had his four children in the vehicle, including his two-year old twins, R.F. and N.F., as well as two older minor children he supports financially. He was unaware of why he was stopped. He allegedly asked the officers to speak with his father on his cell phone. His father was an officer with the Lafayette Police Department.

When Mr. Floyd finally exited the vehicle, he was handcuffed. The witnesses at the scene, in particular Ms. Melissa Gotch and Ms. Brenda Bernard, testified they could hear Mr. Floyd shouting at the officers. A video of the incident confirms the officers’ testimony that, while still handcuffed, Mr. Floyd attempted to walk away from the officers. In response, the officers immediately placed him in the police unit.

|sMr. Floyd claimed that the officers slammed him against the hood of the police unit and kneed him in the back, injuring his back, shoulder, and wrist. None of the witnesses who testified at trial saw the officers knee Mr. Floyd in the back. There is nothing on the video to support such a claim.

Mr. Floyd also denied that he was trying to resist arrest or walk away from the officers while handcuffed. Yet, the video shows that he did try to walk away. Ms. Bernard, a resident of the apartment complex identified by Mr. Floyd as a witness to the incident, testified that she did not see the officers either kick or knee Mr. Floyd in the back. She only witnessed their attempts to detain him and then place him in the police unit.

Ms. Zenon was later summoned to the scene; and informed officer Begnaud that Mr. Floyd was not Mr. Coleman, and therefore not the individual who was a part of the domestic dispute. Mr. Floyd was detained for only eleven minutes by the officers before he was released. No arrest was made and no charges were filed against Mr. Floyd for resisting the officers.

Subsequent to the incident, Mr. Floyd went to the Emergency Room of Lafayette General Medical Center (“LGMC”). The record reflects that Mr. Floyd told the personnel at LGMC the following:

[Patient] states the police “mistaked” him for someone else and threw him on the ground and kicked him in the back and handcuffed him, then realized he was the wrong person and let him go. No marks seen to lower back. [Complains of] lower back pain and right wrist pain. Comment: Small amount of swelling and small abrasion noted to right wrist, [patient] is able to move right wrist but states that it hurts, [also] [complains of] pain with palpation.

All of the tests conducted on Mr. Floyd were normal. Based on his complaints of pain, he was prescribed Lortab and muscle relaxers. Mr. Floyd ^subsequently treated with Dr. Maureen Brennan, a psychologist, and claimed the two younger children, K.F. and N.F., have suffered nightmares since the incident.

On April 11, 2012, Mr. Floyd filed suit individually and on behalf of the two minor children, K.F. and N.F., against the City of Carenero and Chief Carlos Stout, in his Official Capacity as Chief of Police of the City of Carenero, claiming that he “was the victim of police harassment and brutality and deliberate physical and mental abuse and humiliation caused by negligence.”

A bench trial on the merits was held on November 18 and 19, 2013. On December 5, 2013, the trial court issued its “Reasons For Ruling” (Reasons) finding that “the officers did not use excessive or unreasonable force in restraining Floyd, considering the exigency of the situation in which they were placed.” The trial court found that the officers acted in “good faith” pursuant to La.R.S. 46:2142 and, pursuant to the provisions of the statute, found “this statute provides immunity to these officers while responding to a domestic abuse situation.” The trial court further stated, “There is no evidence that the officers failed to exercise good faith or due care in their handling of the situation or in their detention of Floyd.”

■ The trial court also found that no evidence had been presented pursuant to the allegations in plaintiffs’ petition for “negligent hiring, training and /or supervision of the officers,” and thus those claims were dismissed. The trial court also dismissed Mr. Floyd’s claims of violation of his Miranda rights based on the lack of evidence presented that “Floyd was ever interrogated or placed under arrest.”

|sOn December 27, 2013, a judgment dismissing with prejudice all of plaintiffs’ claims and taxing all costs to plaintiffs was signed by the trial court, from which the plaintiffs have lodged a timely appeal.

ASSIGNMENTS OF ERROR

Plaintiffs assert the following assignments of error on appeal:

I. The trial court erred in its determination that Officer Kalen Begnaud and Officer Greg Domingue provided credible testimony although there were several blaring internal contradictions and irreconcilable conflicts within their respective testimonies.
II. The trial court erred in its determination that the initial stop of Dominique Floyd did not transform into a full blown arrest and that Dominique Floyd did not have the right to resist the unlawful arrest when he was apprehended and approached by officers when Floyd did not commit or was not about to commit a criminal offense.
III. The trial court erred in its determination that officers of the Car-enero Police Department utilized reasonable measures when performing an alleged Terry Stop because Officer Dominigue [sic] failed to ascertain any identifying information of Dominique Floyd.
IV. The trial court erred in its determination that excessive force was not utilized by officers of the Car-enero Police Department when performing an alleged Terry Stop of Dominique Floyd when Dominique Floyd was merely the victim of a false arrest and was simply inquiring into the validity of his arrest.
V. The trial court erred in dismissing the physical and mental injuries incurred as a result of the Officers’ negligent actions as to Dominique Floyd and his children.

LAW AND ANALYSIS

Standard of Review

“[A]ppellate jurisdiction of a court of appeal extends to law and facts.” La. Const, art. 5, § 10(B). The appellate court must determine whether the trial court committed an error of law or made a factual finding that was manifestly | ^erroneous or clearly wrong. Gibson v. State, 99-1730 (La.4/11/00), 758 So.2d 782, cert. denied, 531 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559 (2000). The reviewing court must review the record in its entirety to make this determination. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). “Consequently, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous.” Ardoin v. Firestone Polymers, L.L.C., p. 6, 10-245 (La.1/19/11), 56 So.3d 215, 219; see also Harvey v. City of Eunice Police Dep’t, 10-1228 (La.App. 3 Cir. 4/6/11), 62 So.3d 290.

However, statutory interpretations are questions of law. Shell v. Wal-Mart Stores, Inc., 00-997 (LaApp. 3 Cir. 3/21/01), 782 So.2d 1155, unit denied, 01-1149 (La.6/15/01), 793 So.2d 1244. Although a reviewing court defers to a trial court’s reasonable decision on a question or matter properly within the trial court’s discretion, if the trial court’s decision is based on an erroneous interpretation or application of the law, such an incorrect decision is not entitled to deference. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

Law Enforcement Officers’ Right to Effect a Terry Stop

In its Reasons, the trial court correctly cited both federal and state jurisprudence recognizing the right of law enforcement officers to “temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed, or is about to commit a crime.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

In addition, La.Code Crim P. art. 215.1(A) defines the limits of an officer’s actions in effecting a Terry stop as, “A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is |7about to commit an offense and may demand of him his name, address and an explanation of his actions.”

The trial court also addressed in its Reasons the definition of “reasonable suspicion,” as defined by the supreme court and stated, “Reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference.” Belton, 441 So.2d at 1198.

In this case, the trial court specifically found, “that the identification by the victim of 'Floyd as her abuser in a domestic dispute was sufficient and reasonable grounds for the officers to temporarily detain Floyd.” The trial court’s findings are supported by the testimony of the officers, Ms. Zenon’s mother, Tabatha and Ms. Zenon’s May 5, 2013 statement taken on the same day as the incident.

The evidence clearly showed that the officers were responding to a domestic dispute call and were questioning Ms. Zenon, the complainant, when a dark SUV passed by with a driver speaking on a cell phone. Ms. Zenon identified the vehicle as one belonging to the perpetrator, James Coleman. Her identification of the vehicle resulted in Corporal Domingue returning to his unit, pursuing, and parking his unit directly behind the identified SUV in a neighboring apartment complex in order to determine the identity of the driver and his possible involvement in the domestic dispute. Thus, we find that the trial court’s factual findings were not manifestly erroneous and that the necessary “reasonable suspicion” existed to support Corporal Domingue’s actions in instigating a Terry stop.

| iJJuty Imposed on Officers Under “T he Protection from Family Violence Act”

The Louisiana Legislature addressed the issue of domestic violence in a series of statutes entitled “The Protection from Family Violence Act.” Louisiana Revised Statutes 46:2181 states in pertinent part:

The purpose of this Part is to recognize and address the complex legal and social problems created by domestic violence ... The legislature further finds that previous societal attitudes have been reflected in the policies and practices of law enforcement agencies and prosecutors which have resulted in different treatment of crimes occurring between family or household members and those occurring between strangers. It is the intent of the legislature to provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection. Furthermore, it is the intent of the legislature that the official response of law enforcement agencies to cases of domestic violence shall stress the enforcement of laws to protect the victim and shall communicate the attitude that violent behavior is not excused or tolerated.

Louisiana Revised Statutes 46:2140 states with particularity the duty of a police officer when dealing with a domestic abuse situation and states in pertinent part:

A. Whenever a law enforcement officer has reason to believe that a family or household member or dating partner has been abused, the officer shall immediately use all reasonable means to prevent further abuse, including:
(1) Arresting the abusive party with a warrant or without a warrant pursuant to Code of Criminal Procedure Article 213, if probable cause exists to believe that a felony has been committed by that person, whether or not the offense occurred in the officer’s presence.
(2) Arresting the abusive party in case of any misdemeanor crime which endangers the physical safety of the abused person whether or not the offense occurred in the presence of the officer. If there is no cause to believe there is impending danger, arresting the abusive party is at the officer’s discretion.
(3) Assisting the abused person in obtaining medical treatment necessitated by the battery; arranging for, or providing, or assisting in the procurement of transportation for the abused person to a place of shelter or safety.

|9The two officers of the Carenero Police Department were acting in response to a “domestic in progress” call. In other words, this was an ongoing domestic abuse complaint based on a 911 call by Ms. Zen-on. Considering the duties imposed on the officers by virtue of “The Protection from Family Violence Act[,]” the legislature has also provided for specific qualified immunity in situations such as the one before this court for review. Louisiana Revised Statutes 46:2142 states:

Any law enforcement officer reporting in good faith, exercising due care in the making of an arrest or providing assistance pursuant to the provisions of R.S. 46:2140 and 2141[] shall have immunity from any civil liability that otherwise might be incurred or imposed because of the report, arrest, or assistance provided.

Does the “Good Faith” Exception of La. R.S. 46:2142 Apply to the Excessive Force Claim of Mr. Floyd?

In its Reasons, the trial court cited La.Code Crim.P. art. 220, which provides, “A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.”

This court in Smith v. Guidroz, 12-1232, p. 11 (La.App. 3 Cir. 10/30/13), 125 So.3d 1268, 1275, quoted Harvey v. City of Eunice Police Department, 10-228, pp. 3-4 (La.App. 3 Cir. 4/6/11), 62 So.3d 290, 293, for the standard for an analysis of a claim of excessive force:

Generally, excessive force claims fall under the duty/risk analysis for negligence claims. Stroik v. Ponseti, 96-2897 (La.9/9/97), 699 So.2d 1072. Under that standard, the plaintiff must prove, “(1) the conduct in |inquestion was the cause-in-fact of the resulting harm; (2) [the] defendant owed a duty of care to plaintiff; (3) the requisite duty was breached by the defendant; [and] (4) the risk of harm was within the scope of protection afforded by the duty breached.” . Id. at 1077. In determining whether there was a breach of duty, the court should apply the factors enumerated in Kyle v. City of New City of New Orleans, 353 So.2d 969 (La.1977).
In Kyle, 353 So.2d 969, the supreme court specifically addressed analysis of excessive force claims, stating:
The use of force when necessary to make an arrest is a legitimate police function. But if the officers- use unreasonable or excessive force, they and their employer are liable for any injuries which result.
Whether the force used is reasonable depends on the totality of the facts and circumstances in each case. A court must evaluate the officers’ actions against those of ordinary, prudent and reasonable men placed in the same position as the officers and with the same knowledge as the officers. The degree of force is a factual issue. As such, the trial court’s finding is entitled to great weight.
Several factors to be considered in making this determination are the known character of the arrestee, the risks and dangers faced by the officers, the nature of the offense involved, the chance of the arrestee’s escape if the particular means are not employed, the existence of alternative methods of arrest, the physical size, strength, and weaponry of the officers . as compared to the arrestee, and the exigencies of the moment.
Id. at 972-73. (Citations Omitted.)

Once Corporal Domingue reached the passenger side of Mr. Floyd’s vehicle, he found Mr. Floyd talking on a cell phone. The officer testified at trial:

|„I asked him to please, politely, because he was on the phone, to hang up the phone and speak with me, step out the vehicle to speak with me. Immediately, he advised that he’s not hanging up the phone, that he did nothing wrong. At that point in time, I must have told him probably about 15 times to hang up the phone, please step out the vehicle, hang up the phone, please step out the vehicle.

During this exchange with Mr. Floyd, Corporal Domingue called for backup •units, including Officer Begnaud, based on Mr. Floyd’s refusal to comply with his requests to hang up the phone, exit the vehicle, and speak with Corporal Do-mingue. During his testimony, Corporal Domingue expressed to the trial court, “I’ve always been taught that it’s not safe to keep a suspect in a vehicle. I can’t see all their hands, and it’s just not safe for me. I’d much prefer having the subject standing outside the vehicle to where I can speak with him.”

Moreover, in State v. Landry, 588 So.2d 345 (La.1991), and reaffirmed in State v. Duhe, 12-2677 (La.12/10/13), 130 So.3d 880, the supreme court affirmed an officer’s reasonable request after a stop is initiated to order all of the occupants out of the vehicle in order to ensure the officer’s safety. “Since police officers should not be required to take unnecessary risks in performing their duties, they are ‘authorized to take such steps as [are] reasonably necessary to protect their personal safety and maintain the status quo during the course of [a Terry ] stop.’ ” Id. (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985)). Thus, Corporal Domingue was following both the required procedure and the law when he sought to have Mr. Floyd exit the vehicle. The number of requests and Mr. Floyd’s refusal to obey the commands of the officer caused Corporal Do-mingue to ask for backup in light of the requirements of officers in an ongoing domestic-dispute investigation.

|1⅞Once Mr. Floyd finally exited the vehicle, he continued to argue with the officers. Corporal Domingue testified that once again, Mr. Floyd refused his command to turn around so that he could be placed in handcuffs. Based on Mr. Floyd’s previous behavior in resisting the prior commands, Corporal Domingue testified, “I wanted to make sure he didn’t hurt me or anybody else.” Mr. Floyd was then placed in handcuffs for officer safety.

In State v. Turner, 13-0180, p. 3 (La.3/1/13), 108 So.3d 753, 754-55 (quoting State v. Porche, 06-312, p. 8 (La.11/29/06), 943 So.2d 335, 339), the supreme court stated “the use of handcuffs during a putative Terry stop is reasonable if the State can ‘point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm.’ ”

Corporal Domingue testified at trial that, based on the training he received at the academy, the repeated refusal of a suspect to respond to a request is considered resisting arrest. The officers were instructed to treat such a suspect with more caution, thus the need for the handcuffs.

The decision to place Mr. Floyd in handcuffs is further supported by Mr. Floyd’s attempt to evade detention by walking away from the officers subsequent to the placement of the handcuffs. The video of the incident was recorded by the camera located on Corporal Domingue’s police unit. After a review of the video recording, the trial court specifically found:

It is clear from the police video that Floyd attempted to evade the police after being handcuffed. While the Court understands Floyd’s agitation at being detained by the police when he in fact was innocent, he still had an obligation to submit peacefully. The officers | lsdid not use excessive or unreasonable force in restraining Floyd, considering the exigency of the situation in which they were placed.

The video as well as the testimony of the eye-witnesses supports the officers’ version of events wherein they handcuffed Mr. Floyd and placed him in the police unit. There is no evidence in the record to support Mr. Floyd’s version of events wherein he claims he was thrown upon the hood of the police unit and kneed in the back by the officers. His statement to the medical staff at LGMC indicates the officers “threw him on the ground and kicked him in the back and handcuffed him,” none of which is supported by the video, the eyewitnesses or the officers’ testimony.

Ms. Melinda Gotch, a neighbor of Mr. Floyd, stepped outside and witnessed Mr. Floyd in handcuffs in front of the officer’s vehicle. She did not see the officers kick him, slam him against the vehicle, or knee him in the back, but only saw them “pushing him around.” She did not see the officers place Mr. Floyd in the police unit.

Ms. Barbara Jean Bernard was identified in Mr. Floyd’s deposition testimony as a witness to the incident. She testified at trial that Mr. Floyd was attempting to speak with his father on the cell phone after he exited the vehicle and was being handcuffed by the officers. At that point in time, Ms. Gotch took the phone from Mr. Floyd and also took the minor children out of the Floyd vehicle and brought them to her apartment. Ms. Bernard testified that she saw the officers move Mr. Floyd up against the front of the police unit, and begin to push him toward the door of the police unit and put him in the vehicle. However, she did not witness the officers kick Mr. Floyd or any officer knee him in the back during this maneuver.

114After he was released, Mr. Floyd testified that he went to the Emergency Room at LGMC. The evidence in the record does not support Mr. Floyd’s statements made to LGMC personnel that he was kicked or kneed in the back and thrown to the ground by the officers. The medical reports of the Emergency Room personnel at LGMC, as previously indicated, do not reflect any discernable injury to Mr. Floyd’s back and only a slight abrasion on his wrist from the handcuffs.

The record also reflects that the officers released Mr. Floyd from detention within approximately eleven minutes of his initial detention, and shortly after Ms. Zenon confirmed that he was not the aggressor in the domestic dispute. The officers chose not to arrest Mr. Floyd or press charges for resisting an officer.

We agree with the trial court that Mr. Floyd had an obligation to submit peacefully and respond to Corporal Domingue’s questions. To have done so would have obviated the need for the entire incident and allowed the officers to pursue Ms. Zenon’s ex-boyfriend, Mr. Coleman.

We also agree with the trial court’s ruling that the officers were entitled to statutory qualified immunity, based on a finding of good faith. In its Reasons, the trial court specifically found:'

Additionally, La.R.S. 46:2142 provides immunity from civil liability to “any law enforcement officer reporting in good faith, exercising due care in the making of an arrest or providing assistance” involving domestic disputes. This Court finds that this statute provides immunity to these officers while responding to a domestic abuse situation. There is no evidence that the officers failed to exercise good faith or due care in their handling of the situation or in their detention of Floyd.

Finding no manifest error in the trial court’s determination of the facts and its application of the law, we hereby affirm the dismissal with prejudice of all of plaintiffs’ claims.

UATrial Court’s Dismissal of Plaintiffs Additional Claims

The trial court dismissed plaintiffs’ claims for negligent hiring, training, and/or supervision of the officers based on lack of evidence. It also dismissed the plaintiffs’ alleged violation of Mr. Floyd’s Miranda Rights on the basis that no evidence was presented that Mr. Floyd “was ever interrogated or placed under arrest.” No error was raised by the plaintiffs based on the trial court’s dismissal of these two claims and, therefore, they are not before us on appeal.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court dismissing with prejudice all claims of Dominique Floyd individually and on behalf of his minor children K.F. and N.F. against the City of Carenero and Chief Carlos Stout, in his Official Capacity as Chief of Police of the City of Carenero. All costs of this appeal are assessed against Dominique Floyd.

AFFIRMED.

      . No appeal was lodged based on the dismissal of the claims of negligent hiring and a violation of Mr. Floyd’s Miranda rights, and hence, we will not address those claims in this opinion.

      . Whenever a law enforcement officer investigates an allegation of domestic abuse, whether or not an arrest is made, the officer shall make a written report of the alleged incident, including a statement of the complainant, and the disposition of the case.


author: SAUNDERS, Judge.

text:
    SUCCESSION OF Jacob BORDELON.
    No. 14-274.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Robert Ronald Faucheux Jr., Law Offices of Robert R. Faucheux, Laplace, LA, for Appellant, Lucas Desselle.
    Henry Howard Lemoine, Jr., Attorney at Law, Pineville, LA, for Appellant, Lucas Desselle.
    W. Jay Luneau, Luneau Law Offícé, Alexandria, LA, for Appellee, Marilyn Bor-delon.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

|,This is a succession case dealing with a will executed in 1999, a codicil executed in 2010, and second codicil executed in 2011. At trial, Appellees asserted the 2011 codicil was invalid because it was executed at a time the decedent lacked testamentary capacity and was the product of undue influence. The trial court found the decedent lacked testamentary capacity at the time the 2011 codicil was executed and that Appellant exerted undue influence on the decedent. On appeal, Appellant raises three assignments of error. Appellees answered the appeal, asserting the trial court erred in finding the 2011 codicil was valid in form. For the reasons discussed herein, we affirm the trial court’s judgment. FACTS AND PROCEDURAL HISTORY

This case involves the testament of Jacob Bordelon (hereafter “decedent”) and two codicils.

The decedent was the father of three children, Marsha, Vickie, and Wade, and was married to Marilyn Bordelon. Marsha has a son, Lucas Desselle, who is the Appellant. Vickie had two sons, Clint and Jase Arnouville. The decedent made his living farming and raising cattle.

The decedent executed an original will on August 23, 1999, dividing naked ownership of most of his estate amongst his children with a usufruct in favor of Marilyn. Some items were bequeathed to his children free of the usufruct in favor of Marilyn. On June 8, 2010, to reflect the acquisition of additional property, the decedent executed a codicil to the original will. The 2010 codicil disposed of additional property and amended some former legacies. Appellant was not a legatee in either the 1999 will, or the 2010 codicil. On December 14, 2011, the decedent executed a second codicil. The 2011 codicil granted naked ownership of 12the property formerly bequeathed to Wade to Appellant. Wade was left a usufruct of the property formerly bequeathed to him in naked ownership. Several items were bequeathed to Appellant in full ownership, unencumbered by the usufruct in favor of Wade. Appellant had never been a legatee before.

The decedent died on August 8, 2012. Appellant filed a petition to probate the decedent’s 1999 will and the 2011 codicil on October 16, 2012. On October 17, 2012, the original will and 2011 codicil were probated and Appellant was appointed provisional administrator of the decedent’s estate. On November 9, 2012, the decedent’s wife, Marilyn, filed a Motion to Remove Provisional Administrator, to File Original Will and Codicil, to Appoint Executrix, for Authority to Lease Property, and to Continue Business Enterprises, in which she alleged the 2011 codicil was unenforceable because the decedent lacked capacity to execute it and because Appellant unduly influenced the decedent. A judgment probating the original will and 2010 codicil was issued on May 10, 2013, On May 14, 2013, Appellant filed a Motion to Re-Fix Hearing on Rule to Show Cause, alleging the May 10, 2013 judgment did not address the validity of the 2011 codicil. After trial on the merits, judgment was rendered on January 21, 2014, declaring the 2011 codicil null. It is from this judgment that this appeal arises.

In June of 2011, Dr. James Quillan conducted a mental status examination on the decedent, reporting that the decedent was not oriented as to time but was able to speak fluently and coherently. His deposition testimony was admitted into evidence at trial. Multiple witnesses testified that the decedent behaved unusually and was confused in the months surrounding the execution of the 2011 codicil. However, the attorney who notarized the 2011 codicil testified that the decedent appeared coherent on the two days he met with him, including the day the 2011 codicil was executed. On the evening of December 14, 2011, following the ^execution of the second codicil, the decedent inappropriately discharged a firearm in his home.

Appellant spent a significant amount of time with the decedent throughout his life and had a close relationship with the decedent. For many years, Appellant helped the decedent with the farming and cattle operations. In the last few years of the decedent’s life, the frequency of their contact decreased. However, Appellant’s girlfriend, Kasey, spent a substantial amount of time with the decedent in the year preceding his death, often taking him to doctors’ appointments, to visit friends, to joyride, and to visit Appellant and others while they worked in the field. Marilyn primarily cared for the decedent in the time preceding his death, although she was often assisted by her children and Kasey.

In his appeal, Appellant raised the following assignments of error:

ASSIGNMENTS OF ERROR:

1. The trial court erred in finding that the decedent lacked testamentary capacity.
2. The trial court erred in finding that Appellant exerted undue influence on the decedent.
3. The trial court erred in denying Appellant’s motion in limine to exclude the deposition testimony of Dr. James Quillan.

ASSIGNMENT OF ERROR NUMBER ONE:

Appellant asserts that the trial court erred by declaring the 2011 codicil null on the grounds that the decedent lacked testamentary capacity. This assignment of error is without merit.

“An appellate court may not set aside a trial court’s finding of fact absent manifest error or unless it is clearly wrong.” Succession of Moss, 00-62, p. 3 (La.App. 3 Cir. 6/21/00), 769 So.2d 614, 617, writ denied, 00-2834 (La.12/8/00), 776 So.2d 462 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). “[T]he question of testamentary capacity is a question of fact.” Succession of Ellis, 486 So.2d 260, 262 (La.App. 3 Cir.1986).

The trial court found the evidence showed the decedent “had the capacity to execute the document and to understand the nature of the document, [but the decedent] did not have the capacity to understand the consequences thereof,” and, thus, that decedent “did not have the necessary testamentary capacity to execute the Codicil in December 2011.” Therefore, the trial court found the 2011 codicil invalid. To warrant reversal, Appellant must show that the trial court’s finding that the decedent lacked testamentary capacity was manifestly erroneous or clearly wrong.

To have the capacity to donate inter vivos or mortis causa, a person must be able “to comprehend generally the nature and consequences” of his action. La.Civ. Code art. 1477. “Capacity to donate mor-tis causa must exist at the time the testator executes the testament.” La.Civ.Code art. 1471. A person challenging the capacity of a testator must prove lack of capacity at the time the testament was executed by clear and convincing evidence. La.Civ. Code art. 1482(A).

After reviewing the record, we find ample evidence to support the trial court’s finding that the decedent lacked testamentary capacity at the time the 2011 codicil was executed. James W. Quillan, Ph.D., a medical psychologist who holds a post-doctoral Master’s Degree in Clinical Psycho-pharmacology, performed a mental status examination on the decedent on May 25, 2011. He testified that, in the course of the mental status examination, the decedent indicated he believed the year was 1920. Additionally, Dr. Quillan’s notes indicate the decedent’s attention and concentration were limited, remote memory was fair, and insight and judgment were diminished.

^Following the mental status examination, Dr. Quillan recommended cognitive status evaluation. In accordance with this recommendation, under the supervision of Dr. Quillan, a technician conducted the Repeatable Battery Assessment of Neu-ropsychological Status (RBANS) test. This test has been peer-reviewed and is generally accepted in the field as the appropriate test to administer to determine cognitive function. Dr. Quillan explained the results:

A. .He functioned well below the first percentile relative to his age group.
Q. Tell us what that means in lay terms, how his cognitive function could be—
A. If you would scientifically pick a hundred elderly patients in the general population, his performance would fall — would correspond to the — back that up. Ninety-nine out of 100 of that sample would do better than he did.
Q. So he was at the lowest end of the scale in his cognitive function?
A. Yes.
Q. And, again, that’s comparing him to persons in their 80s, not with the rest of the population?
A. Correct.

Dr. Quillan further explained:

Q. And then when you also went on to say that it would be important to make appropriate accommodations “with respect to disposition and planning at discharge,” tell me what you meant by that.
A. Somebody would have to be responsible for him. He would not be independently responsible for his own behavior, taking care of himself.
Q. So from a mental standpoint, he was not able to take care of his daily needs?
A. Correct.

Dr. Quillan further acknowledged the decedent’s condition was “continually deteriorating” and explained “he would not get better.” When specifically asked if he believed the decedent had capacity in December 2011, Dr. Quillan explained:

|-,Q. In your opinion, did Mr. Bordelon have the mental capacity to do a will on December 14, 2011?
A. He did not have the capacity as of my examination in May of 2011. And based on the convergent validity of the other medical records, I do not believe he had it in December 2011.

Appellant criticizes the trial court’s reliance on the opinion of Dr. Quillan because his only contact with the decedent was brief, took place several months prior to the execution of the 2011 testament, and was primarily based on the RBANS test, which was administered by Dr. Quillan’s technician. This criticism is misplaced. Based on the mental status examination, Dr. Quillan recommended further cognitive function testing. Dr. Quillan’s technician administered the RBANS test, a peer-reviewed and field-accepted method to evaluate the neuropsychological status of adults. The RBANS test administration and scoring are standardized. The test subject is asked a series of standardized questions. The raw data generated from the answers is assigned a numerical value. Based on the mental status examination and the results of the RBANS test, Dr. Quillan was able to opine that the decedent suffered from seriously diminished cognitive status. The length of time Dr. Quillan actually met with the decedent was not critical to his findings.

Further, Dr. Quillan’s testimony is not the only evidence in the record which supports the trial court’s finding that the decedent lacked capacity to execute the 2011 testament. Medical records indicated the decedent was often confused and disoriented as to time in the months following the execution of the 2011 codicil. Additionally, multiple family members testified to the decedent’s diminished mental status. The decedent’s daughter, Vickie, testified that he made inappropriate comments that were very out of character for him. She further testified that the decedent refused to take his medications at times because he 17believed his family was trying to harm him. The decedent’s son, Wade, testified that the decedent confused and forgot stories he had told for years. Wade and the decedent’s grandson, Jase Arnouville, testified that the decedent told them that he had gone to Las Vegas, when he had actually never been. Additionally, Wade and Marilyn testified that the decedent was often confused about his medications. Marilyn testified that the decedent sometimes called the pharmacy to refill his prescriptions before he needed them. The decedent’s grandson, Clint Arnouville, testified that the decedent would sometimes allege that his personal effects, such as clothes, accessories, and medications had been stolen. When Clint retrieved the items and showed them to the decedent, Clint testified that the decedent would argue that the items had not been there before.

Several witnesses, including the attorney who prepared and notarized the 2011 codicil, testified that the decedent appeared normal to them in their conversations with him. Appellant asserts their testimony proves the decedent was capable at the time of execution of the 2011 codicil. Dr. Quillan explained:

Q. You state that his language function is well preserved. What exactly does that mean?
A. It means he could name objects, and he could talk, and—
A. He could talk. His speech was normal.
Q. He could have somewhat kind of a normal conversation with you?
A. Yes.
Q. But his cognitive reasoning was still at the lowest levels for his age group?
A. Yes. In other words, if you did nothing other than just sit down and talk to him, you might not know anything was wrong with him.

|sAlthough the decedent spoke normally to the attorney and the other witnesses, Dr. Quillan’s uncontroverted testimony clearly established that the decedent retained the ability to converse normally, despite lacking normal cognitive function. Given Dr. Quillan’s undisputed testimony concerning the decedent’s ability to carry on a normal conversation, it was not manifestly erroneous for the trial court to refuse to rely on the testimony of the attorney and other witnesses concerning the decedent’s capacity.

Finally, perhaps most indicative of the decedent’s compromised judgment is an incident that occurred on the evening of December 14, 2011, the date the second codicil was executed. There is much speculation as to what actually occurred. Marilyn, Wade, Vickie, and Clint speculated that the decedent had tried to kill himself. Appellant, Marsha, and Kasey testified that the decedent told them he had tried to kill his wife, Marilyn. Jase testified that the decedent told him he “didn’t have the strength to pick [the gun] up to ... kill himself.” What is clear is that the decedent obtained a handgun and accidently discharged the weapon into the ceiling of his bedroom, after which Marilyn wrestled the gun away from him. This incident, coupled with his explanation of it to Appellant, Kasey, and Marsha, support the conclusion that the decedent was suffering from impaired judgment on the date the second codicil was executed.

Although the trial court’s distinction between having the capacity to understand the nature of the codicil, but not the consequences was rather awkward, the trial court’s ultimate judgment was correct. The uncontroverted expert testimony of Dr. Quillan, the testimony of multiple witnesses concerning the decedent’s out-of-character and confused behavior, the medical records indicating the decedent suffered from confusion and disorientation as to time in the months following the execution of the 2011 codicil, together with the incident involving 19the gun and the decedent’s startling explanation of the incident, provide ample support for the trial court’s conclusion that the decedent was incapable on the date he executed the 2011 codicil. Accordingly, we find that there is no basis for this assignment of error. The trial court’s decision is supported by tlie record, and, thus, is not manifestly erroneous or clearly wrong.

ASSIGNMENT OF ERROR NUMBER TWO:

Appellant asserts that the trial court erred in finding he exerted undue influence on the decedent. Having determined that the decedent lacked testamentary capacity to execute the 2011 codicil, Appellant’s second assignment of error need not be addressed. However, for the purpose of completeness, we now turn to this assignment.

Whether a testator is subject to undue influence is a finding of fact and subject to the manifest error standard of review. Succession of Lounsberry, 01-1664 (La.App. 3 Cir. 5/8/02), 824 So.2d 409, writ denied, 02-2000 (La.10/25/02), 827 So.2d 1163. Louisiana Civil Code Article 1479 states:

A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.

Louisiana Civil Code Article 1483 establishes that, at trial level, “[a] person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence.” “To prove a matter by ‘clear and convincing’ evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence.” Succession of Dowling, 93-1902 (La.App. 3 Cir. 2/25/94), 633 So.2d 846, 855. The trial court noted that the decedent was “almost always was under the constant supervision of Lucas, Kacey (sic), or Marsha” and that the 2011 codicil “was executed at a time |10when Jacob was almost totally under the influence of Lucas, Kasey and Marsha,” and found the codicil to be a product of undue influence. However, after a thorough review of the record, we find no evidence that Appellant exerted undue influence on the decedent.

The evidence shows that the decedent always had a close relationship with Appellant. For many years, Appellant helped with the farming operations and had been a large part of his grandfather’s life. Appellant spent no more time with the decedent in the time surrounding the execution of the 2011 codicil than he had throughout his life. In fact, the record shows the opposite to be true. Although Appellant and the decedent had always been close, the frequency of their contact actually declined in the last few years of the decedent’s life. Appellant explained:

Q. And you spent a lot of time around him as well in the last couple of years of his life didn’t you?
A. I spent a lot of time around him all my life Mr. Luneau.
Q. Okay. When you were farming and all that kind of stuff after your grandfather couldn’t get out as much I take it you probably didn’t spend as much time with him then?
A. Well, no he wasn’t you know he couldn’t get around. You know I would go visit him at home, but he would call me during the day and what you doing? Where you at? How’s it going? Things of that nature.

In fact, even Marilyn testified, Appellant “[n]ever came to visit. Never took him to a doctor’s visit. Never stayed with him in the hospital. But, that was his choice. He said he didn’t like that. That was his choice.” Further, although Appellant visited briefly with the decedent on the date the 2011 codicil was executed, Appellant testified that he did not ride with the decedent to the attorney’s office that day.

The record establishes that other family members spent much more time with the decedent than Appellant. Wade, Vickie, and Marsha testified that Marilyn |nwas the decedent’s primary caregiver, with assistance from her children, in-home care providers, and Kasey. Marilyn, herself, testified:

Q. There was another instance when in the Home Health records where one of the nurses had came in and you had gone [sic] run an errand and he told them that you had been [sic] for two days.
A. Oh, yea.
Q. Is that true had you been gone for two days when that happened?
A. No, indeed I never left. It was twenty-four care. Night and day.
Q. Okay.
A. Night and day.
Q. Did you ever have an opportunity to leave the house and go somewhere to run an errand or to do something like that?
A. Well, I would I’m not a person to go. I don’t like to visit. I like to stay home so I just maybe just go to the grocery store and come back. Sometimes I would go to mass on Sunday. He didn’t sleep at all at night but when it break day he would take a nap. He would like want to go to sleep. And if it was like that that he was sleeping or something I could look I am going to mass Boy. I would go to mass that lasted thirty-five or forty minutes at the longest and I would come back and you know he was all right. But I never went anywhere. Oh, no.

The record shows that Kasey sometimes took the decedent to visit Appellant in the field. However, during most of these visits, other workers were present. Given that Appellant rarely visited the decedent, alone or otherwise, and the decedent was almost always under the supervision of Marilyn or others, it is difficult to imagine when the opportunity may have presented itself for Appellant to exert any amount of influence on the decedent regarding the will.

Each witness also testified that Kasey spent a significant amount of time with the decedent. She often took him “riding,” to doctor’s appointments, to the pharmacy, to visit friends, and to visit Appellant and others while they were working in the fields. Several witnesses testified that she stayed in the hospital |12with the decedent for several days during his last hospital visit. However, Appellees only argue that Appellant unduly influenced the decedent, not Kasey. Further, evidence that Kasey helped the decedent and kept him company is not, alone, evidence of undue influence.

The burden of proving undue influence is high. Considering that Appellant had always had a close relationship with the decedent, that Appellant’s contact with the decedent declined in the time period surrounding execution of the 2011 codicil, that Appellant did not go to the attorney’s office on the date the 2011 codicil was executed, the witnesses’ consistent testimony that it was Marilyn who was the primary caretaker for the decedent, and Marilyn’s testimony that she rarely left the decedent’s side and that Appellant rarely visited, we find that Appellees did not meet their burden of proof at trial. Accordingly, we find that there is merit to this assignment of error. The trial court’s decision is not supported by the record and, thus, is manifestly erroneous or clearly wrong.

THIRD ASSIGNMENT OF ERROR

In his third assignment of error, Appellant argues that the trial court erred by failing to exclude the deposition testimony of Dr. Quillan. Particularly, Appellant claims that Dr. Quillan’s testimony is inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and La.Code Evid. art. 702. We find no merit in this contention.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to ■determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

La.Code Evid. art. 702.

|13In State v. Brannon, 07-431, pp. 8-9 (La.App. 3 Cir. 12/5/07), 971 So.2d 511, 517-18, writ denied, 07-2465 (La.5/9/08), 980 So.2d 689, this court explained the method of determining the admissibility of an expert’s testimony:

In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony which requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 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 methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-594, 113 S.Ct. 2786. In Foret, supra; the court adopted these observations as a helpful guide for our lower courts in considering this difficult issue. Id. Thus, Louisiana has adopted Daubert’s requirement that in order for technical or scientific expert testimony to be admissible under La.[Code Evid. art.] 702, the scientific evidence must rise to a threshold level of reliability. Daubert’s general “gatekeeping” applies not only to testimony based upon scientific knowledge, but also to testimony based on “technical” and “other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. The trial court may consider one or more of the four Daubert factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Id. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations. Kumho, supra at 526 U.S. at 142, 119 S.Ct. 1167.
State v. Allen, 41,548, pp. 11-13 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, 1254-55 [, writ denied, 07-530 (La.12/7/07), 969 So.2d 619],

1 l4In the instant case, Appellant asserts that, because Dr. Quillan spent only a brief amount of time personally evaluating the decedent and did not personally administer the neuropsychological test, his testimony is inadmissible. We disagree. During his brief personal encounter with the decedent, Dr. Quillan administered a mental status examination. Following this examination, he recommended the decedent undergo further cognitive function testing. Dr. Quillan’s technician administered the RBANS test. The RBANS is a peer-reviewed and field accepted method to evaluate the neuropsychological status of adults. Its administration and scoring are standardized. The test generates raw data, which is then assigned a numerical score. Because the test is standardized, it is not necessary to conduct a lengthy personal interview with the subject to determine their mental status. Nor is it necessary for the interpreter to have actually administered the test. Additionally, the technician who administered the test to the decedent had a bachelor’s degree in psychology and was trained in administering psychometric tests.

Appellant also asserts Dr. Quillan’s testimony is inadmissible because his personal examination of the decedent took place approximately seven months prior to the execution of the 2011 codicil. This assertion is remiss. Dr. Quillan’s testimony was based on sufficient facts and data and aided the trier of fact in understanding the nature of the decedent’s condition, its likelihood of improvement, and its long-term effect on the decedent’s capacity. As such, it is admissible under La.Code Evid. art. 702. Therefore, we find this assignment of error without merit.

ANSWER TO APPEAL

Appellees assert in their answer to the appeal that the trial court erred in finding the form of the execution of the 2011 codicil valid. Having affirmed the trial court’s finding that the decedent lacked testamentary capacity at the time the 2011 codicil was executed, there is no need to address the form of the codicil.

| ^CONCLUSION

For the foregoing reasons we affirm the trial court’s judgment. All costs of this appeal are assessed to Appellant.

AFFIRMED.