author:
CONERY, Judge.
      SAUNDERS, J.,

text:
    Melissa DORE, et al. v. MITSUI SUMITOMO INS., USA, INC., et al.
    No. 12-875.
    Court of Appeal of Louisiana, Third Circuit.
    May 22, 2013.
    Rehearing Denied July 17, 2013.

      David Ross Frohn, Frohn & Thibo-deaux, Lake Charles, LA, for Defendants/Appellees, Mitsui Sumitomo Ins., USA, Inc., Allan Johnson, Ventura Foods, LLC.
    James Steven Gates, Morrow, Gates, & Morrow, Opelousas, LA, Kevin Paul Tauz-in, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Melissa Dore, Cory Blake Credeur, Cody Scott Credeur.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, SHANNON J. GREMILLION, PHYLLIS M. KEATY, JOHN E. CONERY, Judges.
   CONERY, Judge.

Iiln this automobile accident case, Plaintiff, Melissa Dore, asserts that her accident with Defendant, Allan Johnson, caused her extensive injuries for which she claimed damages. After trial, the jury found Johnson was one hundred percent at fault for the accident, but also found that Dore was not entitled to any damages for her alleged injuries. The trial court then denied Dore’s motion for judgment notwithstanding the verdict (JNOV) and alternative motion for a new trial. Dore appeals the jury’s verdict and trial court’s denial of her motions. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 8, 2007, Dore was travelling south on Interstate 49 just outside of Opel-ousas, Louisiana, in the left lane. Johnson was travelling south in the right lane. The passenger side of Dore’s vehicle came into contact with the driver’s side of Johnson’s vehicle as Dore passed Johnson. Dore and Johnson gave conflicting testimony about the location of the incident and severity of the impact. Johnson received a citation for improper lane change and paid the citation without contest.

Dore claims Johnson abruptly changed lanes causing extensive damage to the vehicle she was driving. She claims she was hurt in the collision and began medical treatment the day after the accident. Over the course of her treatment, she underwent two surgeries, one for injuries to the disc located at C6-7 in her neck and the other at L5-S1 in her lower back, all of which she related to the accident. Her treating doctors related her injuries and treatment to the accident, assuming her history of how the accident occurred and the severity of the impact was accurate.

Johnson claimed that, as he was attempting to begin a lane change from right to left, Dore brushed his vehicle and sped past him at a fairly high rate of speed, | {.causing only minor damages to the rental vehicle he was driving. Though at fault for improper lane change, Johnson claimed Dore was partially at fault and could- not have been injured by this relatively minor impact.

On April 7, 2008, Dore filed suit against, inter alia, Johnson, Ventura Foods, L.L.C. (Ventura), Johnson’s employer, and Mitsui Sumitomo Insurance USA Incorporated (Mitsui), Ventura’s insurance carrier. It was stipulated that Johnson was in the course and scope of his employment with Ventura and that Mitsui had liability insurance coverage for this accident.

A jury trial was held November 2-3, 2011. The jury reached a verdict finding that Johnson was one hundred percent at fault for the accident, but that Dore suffered no damages as a result of the accident and awarded Dore nothing.

Dore filed a motion for JNOV and, alternatively, a motion for a new trial which were heard on May 7, 2012. The trial court thoughtfully considered and denied the motions for extensive oral reasons assigned. Thereafter, on May 17, 2012, Dore died from causes unrelated to this accident. She was survived by her two adult children, Cory Blake Credeur and Cody Scott Credeur. Her children were substituted as the proper parties plaintiff to continue the action. Dore timely filed this appeal, presenting two questions for review:

1. Was the jury manifestly erroneous, in awarding no damages to Plaintiff, Melissa Dore, and finding that she suffered no damage, where there were stipulated property damages of $2,049.07, medical expenses of $151,032.42, and two spinal surgeries which her surgeons related to the August 8, 2007 accident?
| ;,2. Did the trial Judge commit legal error in failing to grant Plaintiffs Motions for post-trial relief (i.e., Motion for New Trial, alternatively, Motion for JNOV)?

DISCUSSION

Standard of Review

“[A]ppellate jurisdiction of a court of appeal extends to law and facts.” La. Const. art. 5, § 10(B). Our supreme court, in Ryan v. Zurich American Insurance Co., 07-2312, p. 7 (La.7/1/08), 988 So.2d 214, 219, reiterated the standard of review for facts as follows:

The jury’s determination of the amount, if any, of an award of damages ... is a finding of fact. The Civil Code provides that “[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” La. C.C. art. 2324.1.

The standard of review of a jury’s findings is well-settled:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Our supreme court set forth a two-part test for the reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Cole v. Allstate Ins. Co., 07-1046, p. 2 (La.App. 3 Cir. 6/05/08), 987 So.2d 310, 312, writ denied, 08-1463 (La.10/31/08), 994 So.2d 535 (citing Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242).

“Whether an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error.” Housley v. Cerise, 579 So.2d 973, 979 (La.1991) (citing Mart v. Hill, 505 So.2d 1120 (La.1987)). As this court stated in Bernard v. Hartford Insurance Co., 09-71, p. 3 (La.App. 3 Cir. 6/3/09), 12 So.3d 1098, 1100-01, writ denied, 09-1524 (La.10/9/09), 18 So.3d 41285 (quoting Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-201, p. 6 (La.10/19/1999), 748 So.2d 417, 421):

It is well settled that a court of appeal may not set aside a finding of fact by a trial court or a jury in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Lirette v. State Farm Ins. Co., 563 So.2d 850, 852 (La.1990); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Ins. Co., [563 So.2d] at 853; Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).

The Bernard court further stated:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact-finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Id. at 1102 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)).

Though it is well established that “a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct,” the jury is responsible for determining what damages, if any, were caused by the accident. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993).

Louisiana jurisprudence has also established that when a person was in good health prior to an accident, and symptoms appear after the accident, that person’s injuries are presumed to have resulted from the accident. Bernard, 12 So.3d 1098. That presumption does not apply and/or is overcome should the jury conclude the plaintiff was not credible and the claimed injuries were not caused by the accident. The trial court correctly charged the jury on all issues, and no objections were | Blodged at trial and no issues raised on appeal as to the law to be applied to this case.

Liability and No Damages

In her first issue raised, Dore contends the jury was manifestly erroneous in finding she suffered no damages where there were stipulated property damages of $2,049.07. In Dore’s original brief, counsel calls our attention to Exhibits P2W and P2X which show the property damage estimate and alignment costs for the vehicle Dore was driving total $2,049.02: “Despite this stipulated evidence of damage, the jury found that Ms. Dore suffered no damage.” What counsel for Dore does not reveal is that the vehicle was owned by Maizel Brasseaux, Ms. Dore’s mother. As indicated in footnote 2 herein, the property damage claim was settled out of court with the owner of the vehicle and that issue was not presented to the jury. The damage estimate was relevant to Dore’s attempt to prove the severity of the impact.

As to medical expenses, Defendants did stipulate to the authenticity of the medical bills, and stipulated that the medical expenses Dore was claiming amounted to $151,032.42. However, Defendants reserved their right to challenge medical causation. Indeed, that was the key issue decided by the jury.

The jury found Johnson was one hundred percent at fault for the accident, and Defendants do not contest liability on appeal. Defendants contend that the key facts at issue in this case are the severity of the accident and the feasibility of the accident having caused compensable injuries to Dore. Defendants claim Dore’s credibility, or lack of credibility, was key to the jury’s decision. According to Defendants, we must determine whether there is sufficient support in the record for lathe jury’s verdict of no damages. We agree with Defendants’ framing of the relevant questions in this case.

The jury was presented with two diametrically opposed versions of how the accident occurred. Dore alleged she and Johnson were travelling side by side on I-49, she in the left southbound lane, he in the right lane, when Johnson’s car suddenly moved into her lane and hit her vehicle, causing extensive damages and bodily injury.

Dore argues that her testimony was corroborated by her biomechanical engineer, the photographs of her mother’s vehicle, and the damage estimates for her mother’s vehicle. According to Dore’s expert, the impact caused sufficient lateral movement to her body which was consistent with the severity of her injuries.

Johnson testified to the contrary, alleging that Dore sped past him and barely “brushed” his vehicle as he was trying to change lanes, the two vehicles barely touching. Johnson’s vehicle had only minor damage on the left front fender, which he characterized as the size of a hand. Johnson claims he then had to “chase” Dore for approximately one mile, stopping her on the top of an overpass so that the incident could be reported for insurance purposes.

The investigating officer testified that Dore told him she was not injured. He did not take pictures of the vehicles, as the property damage was minor. The officer testified that after he completed his investigation, both Dore and Johnson drove their vehicles from the scene. Defendants’ expert witness, a biomedical engineer, testified that this was a minor impact collision and could not have caused the severe injuries claimed by Dore.

The jury heard all of the evidence, viewed the property damage estimates 17and photographic evidence of the damage to the vehicle driven by Dore, and even requested to see the photographs again during deliberations. Able counsel for Dore strenuously argued to the jury that for the vehicle Dore was driving to have sustained this much damage, the collision had to be severe.

We find there was sufficient evidence in the record, including the photographs, the testimony of Johnson, the testimony of the investigating officer and of Defendants’ expert, that a jury could reasonably find that the accident was not severe enough to have caused significant injuries or damages to Dore, and that her claims were not credible.

In brief and at oral argument, counsel for Dore made much of the photos of Dore’s mother’s vehicle, which he claims showed “significant rubber marks” on the passenger side that could only have come from a significant impact from Johnson’s left front tire being turned to the left at the time of impact. However, Johnson admitted he was trying to change lanes from right to left when Dore’s vehicle sped past him and “brushed” his vehicle. The jury heard the evidence, saw the pictures, examined the damage estimates, and awarded no damages.

As to Dore’s alleged injuries and medical causation, all of Dore’s medical expert testimony as to causation was premised on the credibility of Dore and her truthfulness in reporting her medical history to her doctors. Dore specifically directs us to the testimony and medical records of Dr. Juneau. An MRI taken shortly after the accident was interpreted by Dr. Juneau and the radiologist to show high intensity changes at C-6/7 consistent with a recent injury at that level. However, Dr. Juneau also testified that if Ms. Dore’s body did not move as she claims it did, then the accident could not have caused her injuries and her medical treatment would not have been related to the collision.

| sDespite counsel for Dore’s protestations to the contrary, just because evidence of medical treatment was presented, it does not necessarily follow that the jury is required to conclude that the medical treatment was caused by this accident. Credibility calls are for the jury to decide. Lirette, 568 So.2d 850. Based upon the evidence and testimony in the record, a jury could reasonably conclude that Dore did not give accurate medical histories to her physicians and that she lacked credibility.

The conflicting evidence given by the parties and their experts in this case supports the conclusion that there are two permissible views of the evidence. Lafayette City-Parish Consol. Gov’t v. Person, 12-0307 (La.10/16/12), 100 So.3d 293. The jury’s findings are reasonable based upon the evidence in the record, and the jury’s verdict was not clearly wrong or manifestly erroneous. This assignment of error has no merit.

Disposition of Post-Trial Motions

In Dore’s second question presented for review, she claims that the trial judge committed legal error in failing to grant Dore’s motions for JNOV, or, alternatively, new trial.

A JNOV is warranted only when the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable jurors could not arrive at a contrary verdict. Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84.

A motion for new trial, however:

requires a less stringent test than for a JNOV as such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. [Joseph v. Broussard Rice Mill, Inc., 00-0628 (La.10/30/00), 772 So.2d 94.] “Although the language is similar between the standards for a JNOV and new trial, Isthere is a real difference between a finding that no evidence existed for a rational jury to reach a particular result and a finding that a jury could not have reached its conclusion on any fair interpretation of the evidence.” Gibson [v. Bossier City Gen. Hosp., 594 So.2d 1332, 1336 (La.Ct.App.1991).] Notably, in considering whether the verdict was supported by any “fair interpretation of the evidence” on a motion for new trial, the trial judge is free to weigh the evidence and make credibility determinations, and is not required to view the evidence in the light most favorable to the non-movant as on a JNOV motion.

Martin v. Heritage Manor S. Nursing Home, 00-1023, p. 4-5 (La.4/3/01), 784 So.2d 627, 631(footnotes omitted).

The trial court below heard all the evidence and correctly evaluated the case under both the JNOV and new trial standard. As to the JNOV standard he stated: “I cannot find that reasonable persons could not reach different conclusions given the evidence presented.”

Under the less strict new trial standards the trial judge stated:

The bigger question in my mind is the Motion for New Trial. I’m going to tell you that had I decided the damage section I would have decided it differently. So what? I’m not allowed to supplant unless I feel that some egregious miscarriage of justice has occurred. I can tell you that I would not have decided it that way. The jury had ample opportunity to hear two very good counsel make two very cogent arguments on what was presented. Dr. Juneau’s testimony was well pointed out to the jury that the hotspots indicated by the MRI, CAT scans, the diagnostic testing indicated that the injuries which ultimately led to the surgeries in the neck and the back were consistent with a time period. I remember counsel making that argument quite clearly. Mr. Frohn says to the jury well, it’s true, and he didn’t bring his own medical guy, he just brought a biomedical guy, but — biome-chanical, I’m sorry, but he did ask him on cross, if her body didn’t move would you find that the injuries are consistent with the accident? And he said no. They evidently accepted that. As I said, I would have decided it differently but I don’t think — you asked for a jury trial, that’s why we have juries, and I don’t get to supplant my thought process for juries, except for very limited and restricted circumstances and I do not believe we have risen to that level today and I deny the Motion for JNO[V] and the Motion for New Trial.

The experienced trial judge listened carefully to all of the arguments and correctly applied the law. His decision to deny a JNOV or new trial was within his 1 ^discretion and must be affirmed.

CONCLUSION

Defendants characterized this case as a “she-said/he-said” case. We agree that this case was decided on credibility. The jury found: “she said — we didn’t believe.”

For the foregoing reasons, we affirm the jury verdict in favor of Defendants, Allan Johnson, Ventura Foods, LLC, and Mitsui Sumitomo Insurance USA, Inc. We also affirm the trial court’s denial of Plaintiff, Melissa Dore’s, motion for judgment notwithstanding the verdict and alternative motion for new trial. All costs of this appeal are assessed against Appellant, Melissa Dore.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

KEATY, J., dissents for the reasons assigned by Judge SAUNDERS.

SAUNDERS, J.,

dissents and assigns written reasons.

| ,The theory that the vehicles were moving in a substantially parallel direction is sacrosanct to the defense of a low impact “brushing” type contact. This theory, however, is fatally flawed.

The record shows that there was only minimal contact between the left front fender of the Johnson vehicle and the right side of the Dore vehicle. This damage was described as the “size of a hand” by Johnson. Additionally, the record contains a photo which established that there was a rubber scrape along the length of the right side of the Dore vehicle. This substantial contact between the Johnson vehicle’s left front tire and the Dore vehicle’s right side could only be made if Johnson’s left front tire was “outside the wheel well” as testified to by Dore’s mechanical engineer. This testimony is supported by common observation and the laws of physics and is uncontroverted in the record.

These same sources mandate that the steering wheel must be turned for the tire to leave the wheel well. The vehicle will follow the tire wherever it goes. These observances are also uncontroverted in the record.

The conclusion is inescapable that the rubber markings on the Dore vehicle cannot coexist with a “brushing” type contact since the Johnson tire had to be turned from its wheel well and into the Dore vehicle to make contact.

|2I have read the record, briefs, and the majority opinion in search of a theory that would allow a “brushing” type contact to coexist with the tire impact shown in the photograph in the record. I have found no such theory and no real discussion of the subject except in the arguments submitted by Dore.

In my view, the physical evidence categorically contradicts the theory of a “brushing” impact. The jury verdict is, therefore, based on a physical impossibility and, as such, is unsupported by the record. Accordingly, I respectfully dissent.

      . For sake of clarity and brevity, we will continue to use "Dore” when referring to Plaintiff.

      . Dore did not own the vehicle she was driving at the time of the accident. The parties stipulated outside the presence of the jury that property damages had been paid to the owner of the vehicle, Dore’s mother. There was no line on the verdict form for property damages and none were claimed by Dore at trial.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    MAGUIRE PLASTIC SURGERY CENTER, LLC, Plaintiff-Appellant v. Dr. John BOOKER, Dr. Donya Watson, and South Arkansas Women’s Clinic, PLC, Defendants-Appellees.
    No. 47,929-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 22, 2013.

      Rountree Law Offices, Monroe, LA, by James A. Rountree, for Appellant.
    Hudson, Potts & Bernstein, Monroe, LA, by G. Adam Cossey, for Appellees.
    Before BROWN, STEWART and CARAWAY, JJ.
   STEWART, J.

11 Maguire Plastic Surgery Center, L.L.C. (“plaintiff’) appeals a judgment sustaining a declinatory exception of lack of personal jurisdiction filed by the defendants, Dr. John Booker, Dr. Donya Watson, and South Arkansas Women’s Clinic. We affirm.

FACTS AND PROCEDURAL HISTORY

In October or November of 2010, Dr. Stephen Maguire of the Maguire Plastic Surgery Center, L.L.C., contacted the South Arkansas Women’s Clinic (“Women’s Clinic”) in El Dorado Arkansas, to inquire about purchasing two medical lasers. Dr. Donya Watson, one of the member-physicians of the Women’s Clinic, agreed to allow Dr. Maguire to inspect the lasers at their clinic. In December 2010, Dr. Maguire traveled to the Women’s Clinic to inspect the lasers. He subsequently contacted the Women’s Clinic to inform them that he would like to purchase the lasers. On January 30, 2011, he traveled to the Women’s Clinic, paid $26,000 for the two lasers, loaded them into his pickup truck, and returned to Louisiana.

After the sale, a dispute arose regarding alleged defects in the lasers. On January 30, 2012, the plaintiff filed a petition to enforce implied warranties in the Fourth Judicial District Court for Ouachita Parish, Louisiana, alleging that there are sufficient minimum contacts to establish jurisdiction over the defendants, Dr. John Booker, Dr. Donya Watson, and the Women’s Clinic. On March 20, 2012, the defendants filed a declinatory exception of lack of personal jurisdiction, arguing that none of the activities related to the transaction at issue occurred in Louisiana, that all defendants were domiciliaries of Arkansas, and that there was no basis for the exercise [ gof jurisdiction over them. On April 24, 2012, the plaintiff filed an opposition to the exception, alleging that it was “very unlikely that professionals in El Dorado, Arkansas, lack sufficient contact within the State of Louisiana for its courts to exercise jurisdiction over them.” The hearing for the exception was set for June 28, 2012.

On April 24, 2012, the plaintiff conducted jurisdictional discovery, and propounded interrogatories and requests for production seeking information of any connection between the defendants and the State of Louisiana. In those requests for production, the plaintiff included a request for “a list of the billing addresses of all of your patients.” The defendants objected to this request, arguing that the information was irrelevant and production was a Health Insurance Portability and Accountability Act (“HIPAA”) violation. The defendants filed a motion to quash the subpoena and a request for a protective order. On May 21, 2012, the plaintiff filed a supplemental opposition to the exception and a motion to compel, seeking an order requiring the defendants to produce the addresses of all of its patients. The defendants subsequently filed a reply to the supplemental opposition and an opposition to the motion to compel.

After the June 28, 2012, hearing of the defendants’ declinatory exception, the court sustained the defendants’ exception of lack of personal jurisdiction and dismissed the plaintiffs lawsuit. Further, it determined that the plaintiffs motion to compel and the motion to quash were moot and irrelevant.

The plaintiff now appeals, urging two assignments of error.

| .LAW AND DISCUSSION

Personal Jurisdiction

In its first assignment of error, the plaintiff asserts that the district court erred when it granted the defendants’ dec-linatory exception of lack of personal jurisdiction.

Appellate courts, when reviewing a trial court’s legal ruling on a declinatory exception of lack of personal jurisdiction, apply a de novo standard. SteriFx, Inc. v. Roden, 41,383 (La.App.2d Cir.8/25/06), 939 So.2d 533; Walker v. Super 8 Motels, Inc., 2004-2206 (La.App. 4th Cir.12/7/05), 921 So.2d 983. However, the trial court’s factual findings underlying the decision are reviewed under the manifest error standard of review. SteriFx, supra; Diamond v. Progressive Security, 2005-0820 (La.App. 1st Cir.3/24/06), 934 So.2d 739; Peters v. Alpharetta Spa, L.L.C., 2004-0979 (La.App. 1st Cir.5/6/05), 915 So.2d 908.

In determining whether there is personal jurisdiction, we must look to the Louisiana long-arm statute, La. R.S. 13:3201, which provides, in relevant part:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of | .this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

Subsection B was added in 1987 to ensure that jurisdiction under the long-arm statute extended to the limits allowed by due process. Official Comments, Acts 1987, No. 418.

Due process requires that, in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103 (La.1991).

The due process test has evolved into a two-part test, the first part being the “minimum contacts” prong, which is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The nonresident’s “purposeful availment” must be such that the defendant “should reasonably anticipate being held in court” in the forum state. Ruckstuhl v. Owens Corning 5Fiberglas Corp., 98-1126 (La.4/13/99), 731 So.2d 881, cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999). By requiring that a defendant must have purposefully availed himself of the privilege of conducting activ ities within the forum state, thus invoking the benefits and protection of its laws, the requirement ensures that he will not be haled into a jurisdiction solely as a result of random, fortuitous or attenuated contacts, or by the unilateral activity of another party or a third person, de Reyes, supra; Alonso v. Line, 2002-2644 (La.5/20/03), 846 So.2d 745, cert. denied, 540 U.S. 967, 124 S.Ct. 434, 157 L.Ed.2d 311 (2003). An individual is not subject to the jurisdiction of a forum in which he has established no “contacts, ties or relations.” International Shoe, supra.

The second part of the due process test centers around the fairness of the assertion of jurisdiction. Hence, once the plaintiff meets his burden of proving minimum contacts, “a presumption of reasonableness of jurisdiction arises” and “the burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum.” de Reyes, supra. In determining this fundamental fairness issue, the court must examine (1) the defendant’s burden; (2) the forum state’s interest; (3) the plaintiffs interest in convenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the state’s shared interest in furthering fundamental social policies. Ruckstuhl, supra.

|fiA court’s exercise of personal jurisdiction may be “specific” or “general.” Burger King, supra. A court may exercise specific jurisdiction over a defendant when the alleged cause of action arises out of or is related to the defendant’s purposeful contacts with the forum state. Heli-cópteros, supra. A court may exercise general jurisdiction over a defendant when the defendant has engaged in “continuous and systematic contacts” with the forum state, but the contacts are not necessarily related to the lawsuit. Id.

As the trial court commented in the case sub judice, the Women’s Clinic is not in the business of selling laser equipment. Rather, Dr. Maguire was advised that the defendants had some unused laser equipment in Arkansas. Then, he made the decision to contact the defendants in Arkansas to inquire about the equipment. Soon thereafter, Dr. Maguire traveled to Arkansas to inspect the equipment. Satisfied with what he saw, Dr. Maguire decided to purchase the equipment and loaded it into his pickup to take it back to Louisiana. The transaction in its entirety took place in Arkansas.

Dr. John Booker and Dr. Donya Watson are both residents of Arkansas and are licensed to practice solely in the state of Arkansas. The evidence is void of any indication that these two doctors have any significant contacts in the state of Louisiana. The Women’s Clinic was formed as an Arkansas domestic liability company and is registered with the Arkansas Secretary of State. Its principal and only place of business is located in El Dorado, Arkansas. All of the operations associated with the Women’s Clinic take place at this location.

17From the facts alleged, we do not find the alleged cause of action arises out of, or is related to, the defendants’ purposeful contacts with the forum state. Thus, in order to justify the exercise of general personal jurisdiction, we must consider only whether the defendants have engaged in “continuous and systematic contacts” with Louisiana.

In his brief, Dr. Maguire notes that “it is logical to assume that a medical service provider in El Dorado, Arkansas, just north of the Louisiana border, provides services to many Louisiana residents and routinely sends bills and/or other correspondence to those patients.” He further notes that “the record contains evidence of the clinic’s good-will advertisement in a newspaper of general circulation that reaches Louisiana residents.”

Holly Holsapple, the office administrator at the Women’s Clinic, was deposed. In her May 23, 2012, deposition, she acknowledged her familiarity with the advertisements placed by the clinic, further stating that she ordered print advertisements in the El Dorado News-Times on a “random and infrequent basis.” In fact, she relayed that the defendants have placed a total of 29 advertisements in this local newspaper since the beginning of 2009.

Based on this information, we find that even though the El Dorado newspaper may have “reached” Louisiana residents, the defendants did not purposely direct advertisements toward Louisiana residents.

In Helicopteros Nacionales de Colombia, S.A., supra, the United States Supreme Court found that the unilateral activity of another party or a third person is not an appropriate consideration when determining whether a 18defendant has sufficient contacts with a forum state to justify an assertion of jurisdiction. The fact that Louisiana residents may decide to seek medical services from the defendants in El Dorado, Arkansas, does not establish that the defendants have sufficient contacts with Louisiana to justify an assertion of jurisdiction.

After a thorough review of the record, we find that the plaintiffs cause of action against the defendants did not arise out of any transaction of business conducted by the Women’s Clinic in the state of Louisiana. Therefore, the trial court did not err in determining that the courts cannot exercise personal jurisdiction over the defendants. This assignment is meritless.

Discovery

In his second assignment, the plaintiff contends that the trial court erred in limiting discovery to matters pertaining to jurisdiction. As we stated in the facts section of this opinion, the plaintiff sought a list of the billing addresses of all of the patients at the Women’s Clinic. The defendants objected to this request, arguing that the information was irrelevant and production was a HIPAA violation. After dismissing the plaintiffs lawsuit, the trial court also determined that the plaintiffs motion to compel and the motion to quash, were moot and irrelevant.

The trial court has broad discretion in ruling on pretrial discovery, and an appellate court should not upset such a ruling absent an abuse of discretion. Walker, Tooke & Lyons, L.L.P. v. Sapp, 37,966 (La.App.2d Cir.12/10/03), 862 So.2d 414, writ denied, 2004-0088 (La.3/19/04), 869 So.2d | 9836. This broad discretion includes the right to refuse or limit discovery of matters that are not relevant to the issues. Id.

The general scope of discovery is found in La. C.C.P. art. 1422, which provides in pertinent part:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (Emphasis added.)

Louisiana Code of Evidence article 510 sets out the “Health care provider-patient privilege” along with several definitions. In Part B of the article, the evidence code sets out the privilege as follows:

B.(l) General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.

Important definitions are now contained in two preceding sections of Part A of the article and broadly define “confidential communication” as follows:

(8)(a) “Confidential communication” is the transmittal or acquisition of information not intended to be disclosed to persons other than persons [persons involved in the patient’s treatment].
(8)(b) “Confidential communication” includes any information, substance, or tangible object, obtained incidental to the communication process and any opinion formed as a result of the consultation, examination, or interview and also includes 110medical and hospital records made by health care providers and their representatives.

The court in Sarphie v. Rowe, 618 So.2d 905 (La.App. 1st Cir.1993), interpreted these provisions to mean “when an individual walks into a doctor’s office and opens his mouth, that everything spilling out of it, whether it be his identity or false teeth (a ‘tangible object’), is presumptively privileged and beyond the reach of discovery.” This privilege is no longer exclusively the patient’s. Part D of Article 510 states:

D. Who may claim the privilege. In both civil and criminal proceedings, the privilege may be claimed by the patient or by his legal representative. The person who was the physician, psychotherapist, or health care provider or their representatives, at the time of the communication is presumed to have authority to claim the privilege on behalf of the patient or deceased patient. (Emphasis added.)

The Sarphie court found that these provisions are “unrestricted,” further finding the patient list was privileged.

After applying these principles to the instant case, we find that the Women’s Clinic patients’ names and addresses are also privileged, and that the trial court did not abuse its discretion in its determination. This assignment of error is without merit.

CONCLUSION

For the reasons assigned, the trial court’s judgment sustaining the exception of personal jurisdiction by the defendants and dismissing the plaintiffs claim is affirmed. Costs of this appeal are assessed against plaintiff/appellant, Maguire Plastic Surgery, L.L.C.

AFFIRMED.


author: ROBERT M. MURPHY, Judge.

text:
    JEFFERSON PARISH FIREFIGHTERS ASSOCIATION OF LOUISIANA LOCAL 1374 and its President Robert Burkett v. The PARISH OF JEFFERSON and the Jefferson Parish East Bank Consolidated Fire Department.
    No. 13-CA-40.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.
    Rehearing Denied June 12, 2013.

      Louis L. Robein, Jr., Christina L. Carroll, Attorneys at Law, Robein, Urann, Spencer, Picard & Cangemi, Metairie, LA, for Plaintiff/Appellant.
    Guice A. Giambrone, III, Craig R. Watson, Kelly A. Dugas, Attorneys at Law, Metairie, LA, for DefendanVAppellee.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

19Jefferson Parish Firefighters Association of Louisiana Local 1374, and its President, Robert Burkett, et al. (collectively, “Firefighters”), appeal the trial court’s September 21, 2012 judgment granting defendants, the Parish of Jefferson and the Jefferson Parish East Bank Consolidated Fire Department’s (collectively, the “Parish”) cross-motion for summary judgment dismissing with prejudice all of the Firefighters’ claims for declaratory judgment and supplemental injunctive relief. The Firefighters sought to compel recalculation of their pay and reimbursement of a 2006 pay increase provided by the Parish “Red Book Ordinance” and withheld by the Parish. For the reasons that follow, we affirm in part, reverse in part, and remand.

| ¡¡FACTS AND PROCEDURAL HISTORY

This is a pay dispute between the Firefighters and the Parish: State law mandating a 2% “longevity pay” for firefighters after three years of continuous service up to and including 20 years pursuant to La. R.S. 33:1992(B); La. R.S. 33:2002(A)(1) providing that the Firefighters receive “supplemental pay” from the State; and the Parish providing raises at the same time set forth in Jefferson Parish’s Red Book Ordinance, a 5% increase for years one to 15 and a 21k% increase to the 25th year. Jefferson Parish Ordinance 18226 (Mar. 13,1991).

Computation of the Firefighters’ increases and wages is addressed by State statute. La. R.S. 33:2004(D) provides that additional compensation paid by the State shall be included in the calculation of total wages. La. R.S. 33:1992(B) |4provides that the base pay and accrued longevity shall be used in computing Statemandated 2% longevity pay.

On April 6, 2006, the Firefighters, through the unincorporated association, Jefferson Parish Firefighters Association of Louisiana Local 1374, and its chief executive officer, Robert Burkett, filed a petition for declaratory judgment and supplemental injunctive relief seeking back pay, alleging that the Parish’s exclusion of State Supplemental Pay from the calculable base for determining their annual pay raises was in error. The Firefighters sued for retroactive and prospective pay adjustments based on State mandates. The Firefighters sought a declaration that Rule V, Section 8 of the pre-2009 Red Book Ordinance, which excluded State supplemental pay from the calculable base for determining raises, was unenforceable as it conflicted with State law requiring its inclusion. See La. R.S. 33:2004(D). They further sought a mandatory injunction and supplemental relief via a declaratory judgment with respect to the recalculation of pay. The Firefighters also asserted a separate claim against the Parish for withholding their post-Katrina 2006 pay raise as set forth in the Parish’s Red Book. They also seek the difference, 3% or .5%, between the 2% raise paid in 2006 and the scheduled Red Book increases.

On May 14, 2012, the Firefighters and the Parish agreed to submit the issue of liability to the trial court on the basis of cross-motions for summary judgment, | ¿reserving damages, if any, for a subsequent proceeding. The motions were heard on August 27, 2012.

The motions were taken under advisement. On September 21, 2012, the trial court denied the Firefighters’ motion for summary judgment and granted the Parish’s cross-motion for summary judgment, dismissing all of the Firefighters’ claims with prejudice.

In its assigned reasons for judgment, the trial court cited La. R.S. 33:2004(D) and held that the State additional compensation must be included in the calculable base for determining the Firefighters’ pay increases. For the years that the Firefighters received an increase in which State supplemental pay was not specified as part of their raises, for which the Firefighters seek retroactive payment, the trial court found that the Parish was entitled to a set-off for its more generous Red Book increases provided to the Firefighters. The trial court further denied retroactive payment on finding that considering the ample “set-off,” the Firefighters had failed to prove up any damages, an essential element of their claim. As for fiscal year 2006, for which the Firefighters’ raise consisted only of the State-mandated longevity increases, but not the scheduled Red Book raises, the trial court found the Red Book raises discretionary. It found that any additional increase above the State-mandated 2% was dependent on the availability of funds and that the 2006 freeze was supported by sufficient evidence of the uncertainty of post-Katrina/Rita property tax collections in Jefferson Parish.

The trial court ruled that in Title 33, the Legislature intended with its police power, that firefighters in certain municipalities, receive as compensation State-mandated longevity increases above their prior year’s wages combined with State supplemental pay. It found this minimum was met with the Parish’s payment of Rthe Red Book schedule. The trial court further found that the Parish presented sufficient evidence of the uncertainty of funding due to Katrina, per former Parish CFO Nancy Cassagne’s testimony, to warrant its exercise of discretion in awarding only the minimum 2% State-mandated longevity increase in 2006.

On September 28, 2012, the Firefighters devolutively appealed the September 21, 2012 summary dismissal of their claims. ISSUES

The Firefighters contend that the Parish failed to calculate and pay pre-2009 Red Book-guaranteed annual longevity pay raises of either 5%, for the first 15 years of service, or 2.5%, for years 15 to 25, on a “total wage” basis, that is considering local Parish pay in addition to State supplemental pay. The Firefighters contend that Statemandated accrued longevity pay, at La. R.S. 33:1992(B) and La. R.S. 33:2004(D), obligates the Parish to include the amount of State supplemental pay in the base pay or “total wages” for all pay and benefit calculations.

As for the 2006 skipped raise, the Firefighters contend that the Parish failed to implement full pay raises in fiscal year 2006 (either 5.0% or 2.5%), despite an express Red Book provision calling for such raises. The Firefighters challenge the Parish’s decision to award only a 2% longevity raise in 2006 equal to the Statemandated raise of La. R.S. 33:1992(B). The Firefighters argue that the Red Book sets the Firefighters apart from other Parish employees by specifically requiring yearly Firefighter pay raises. They further argue that since there was no repeal or amendment of the Red Book ordinance, via the procedure set forth in Rule III, Section 2 of the Ordinance, the Red Book raises were due in 2006.

The Parish responds that the Firefighters’ claims were properly dismissed by the trial court because the Parish substantively complied with State law in prior 17years when it paid out longevity raises under the Red Book Ordinance that exceeded the minimum State-mandated longevity raises, other than in 2006.

The Firefighters concede that each year (except 2006) they received more in compensation under the Red Book provisions than they would have otherwise received if the Parish had merely complied with State law. The Firefighters contend, however, that State supplemental pay must be included in the Red Book wage calculation.

STANDARD OF REVIEW

Appellate courts review the granting of a summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Dean v. Ramos Corp., 00-1621 (La.App. 5 Cir. 2/28/01), 781 So.2d 796. Questions of law, such as the proper interpretation of a statute, are reviewed under the de novo standard of review. Red Stick Studio Dev’t, L.L.C. v. State of Louisiana, et al., 10-193, p. 9 (La.2011), 56 So.3d 181, 187; See also Olde Nawlins Cookery, L.L.C. v. Edwards, 09-1189 (La.App. 1 Cir. 5/3/10), 38 So.3d 1012 (proper interpretation of an ordinance is reviewed under de novo standard).

Appellate courts review a district court’s decision to grant or deny a declaratory judgment using the abuse of discretion standard. City of Kenner v. Kyle, 02-1262 (La.App. 5 Cir. 4/8/03), 846 So.2d 34. The trial court’s grant or denial of injunctive relief should not be disturbed absent manifest abuse of discretion. Charter School of Pine drove, Inc. v. St. Helena Par. Sch. Brd., 07-2238 (La.App. 1 Cir. 2/19/09), 9 So.3d 209.

ASSIGNMENTS OF ERROR

In their first assignment of error, the Firefighters contend that the trial court erred in the computation of Red Book Ordinance longevity increases when applying State-mandated longevity raises under La. R.S. 33:1992(B) by failing to |sinclude State supplemental pay in the calculation of total wages under La. R.S. 33:2004(D).

In their second assignment of error, the Firefighters contend that the trial court erred in concluding that the Parish was justified in withholding the full measure of scheduled Red Book pay increases for fiscal year 2006.

LAW AND DISCUSSION

The parties assert claims and defenses under both State and local law.

Methodology. Despite La. R.S. 33:2004’s requirement to include State compensation in the calculable base for “any other employee benefit,” State supplemental pay was expressly excluded by the pre-2009 Parish ordinance. Rule 1, Section 2; Rule V, Section 8, the Red Book. The Parish contends nonetheless, that each year it complied with La. R.S. 33:2004(D) when it paid in excess of the required minimum raise under La. R.S. 33:1992(B).

In 2009, after this suit was filed, the Red Book was amended, to read consistent with State law and require inclusion of State supplemental pay in the calculable base for determining longevity increases. Ordinance No. 23486 (2/18/09).

The Parish contends that as long as its payment of the base salary (without first adding the State supplemental pay) multiplied by the scheduled Red Book percentage, 5% or 2.5%, equals or exceeds the required minimum raise of La. R.S. 33:1992(B), the Firefighters have no claim. In other words, the Parish contends it has met its obligation as long as the amount actually paid meets the minimum payment required under State law.

The Firefighters, however, offer a different calculation that would require the addition of State supplemental pay prior to the computation of the Red Book schedule of raises. They contend that the base salary must first be added to State 1 [[Supplemental pay before being multiplied by the scheduled Red Book percentage to derive the correct minimal increase.

Pursuant to La. R.S. 33:2004(D), we agree with the trial court “that [the Parish] cannot abrogate from State law by excluding State supplemental pay from the calculation of annual raises.” We further agree with the Trial Court’s methodology in using the prior year’s salary, including all State supplemental compensation, and the 2% multiplier to calculate the required minimum increase. Contrary to the Firefighters’ contentions, we find no legal basis to require Red Book percentages to be used to calculate the required minimum rather than the statutorily-dictated 2%.

Persuasive jurisprudence from the Fourth and Second Circuits supports the trial court’s methodology. The trial court here correctly relied on rulings in New Orleans Firefighters Local 632, et al. v. City of New Orleans, et al., 03-1281 (La. App. 4 Cir. 5/26/04), 876 So.2d 211, units denied, 04-1590, 04-1601 (La.11/15/04), 887 So.2d 475, and Turner v. City of Shreveport, 437 So.2d 961 (La.App. 2 Cir.1983), unit denied, 442 So.2d 468 (La.1983), for its conclusion that the municipality should receive a credit for all increases against the State-mandated longevity increase. As long as the amount of the raise at least equals the required 2% Statemandated increase, including all State compensation, it does not matter how that increase was described or granted.

The holdings of the Fourth and Second Circuits set forth the required methodology to ascertain the required minimum. The circuit courts reviewed both the legislative history and legislative intent. Turner, 437 So.2d at 963-64; New Orleans Firefighters, 876 So.2d at 224. They found that the Legislature intended to provide fire protection for certain municipalities by assuring minimal salaries | inand benefits to the Firefighters by providing a minimum longevity increase under La. R.S. 33:1992(B).

Red Book. On November 16, 2005, after Hurricanes Katrina and Rita, the Parish Council adopted Ordinance 22633, freezing pay increases for all departments, except for the State-mandated 2% for the Fire Department. The Parish relied on this Ordinance to withhold Red Book pay increases for fiscal year 2006. The Firefighters contend the amendatory procedure of the Red Book was not complied with to modify or repeal the Red Book pay raise structure. The Parish responded that the Firefighters did receive the State statutorily mandated minimum increase in 2006, and that a freeze above that was warranted. The Parish Ordinance focused on the effects and uncertainty of Parish budgeting post-Katrina as reasons for the one-year freeze.

Ordinance No. 22633, pertaining to the 2006 Parish budget, provided in part:

WHEREAS, due to the catastrophic effects of Hurricanes Katrina and Rita, the Parish of Jefferson was unable to hold budget hearings for the 2006 fiscal year;
SECTION 3. That although the proposed budget contains an average raise of 2.5%, the administration will not authorize any raises for the period beginning January 1, 2006 until a new 2006 budget is adopted by the Council. Annual raises will be subject to fund-wide or district-wide budgetary restrictions and contingent upon the availability of funds. (Emphasis added).

Ms. Cassagne, the former Parish CFO, testified that the Fire Department’s funding is dependent solely on the property tax millage; that the property tax billing was delayed after Katrina; that preparation of the 2006 budget was postponed; that the Finance Department did not have accurate projections of the millage revenue that would be generated; and that the Parish was justifiably concerned that 2006 collections would be insufficient.

_j_yAsked for “reasons for the elimination of projected pay raises,” Ms. Cassagne testified:

But in the immediate aftermath of Hurricane Katrina, the Parish had no idea who was going to return to the Parish, whether property taxes — in this case property taxes being the sole tax that generates the revenues for this district, whether people were going to come back and actually pay their property taxes. So, in fact, the Parish was so concerned about the chaos that existed after Katrina that they didn’t even do a budget until several months after the beginning of the year. The Parish adopted the 2005 budget because of the state of chaos, the state of lack of information, lack of knowing what was going to happen in the Parish. In fact, when the budget was actually adopted on February 22nd, I believe it was, of 2006, there was still huge amount of uncertainty that existed in Jefferson Parish.
Q. So in the interim you were working with the '05 budget?
MS. CASSAGNE:
Back up. Based on state law, the Parish has to adopt a budget by the end of the calendar year and so the Parish actually tried to comply with the law and adopt a budget by the end of the year. Again, we came back in October after Katrina to some semblance of running government with very little information as to what was happening in the state or the Parish from a fiscal standpoint. No idea what was going to happen from property taxes, sales taxes, which is not pertinent to this, or whether the Parish was actually going to recover from this, you know, huge catastrophic storm.

FINDINGS

On May 14, 2012, the parties stipulated to bifurcate the trial into liability and later address damages, if appropriate. Any decision beyond methodology is premature in the current posture of the case. Liability was taken up on August 27, 2012 on cross-motions for summary judgment. At that point, the trial court had no evidence on damages to confirm that the Parish’s payments exceeded the statutorily required minimum increases in every case, particularly in 2006. The Firefighters’ concession that Red Book payments exceeded the State-mandated minimum does not answer the “damages” question of whether the correct methodology was adhered to.

112We find that the Parish must meet its State-mandated longevity pay responsibilities under La. R.S. 33:1992(B) and La. R.S. 33:2004(D). Without evidence on damages, beyond the scope of the instant appeal, we are unable to conclude, as the trial court did, that the Firefighters had no damages to justify dismissal of the Firefighters’ claims in their entirety.

We find that the trial court was correct in finding that the Red Book raises above the State-mandated 2% were discretionary. Rule V, Section 2.1. We further find that the Red Book, Section 3 of Ordinance 22633, makes any additional raises “contingent on the availability of funds,” and that there was sufficient evidence of uncertainty in the availability of funding to warrant the 2006 freeze. Additionally, we find the amendatory procedure of Rule III inapplicable to these facts since the Pay Plan in Rule V was already subject to an assessment of funding availability without having to amend the Red Book statute. Additionally, a public hearing was required only before legislative changes to the Red Book ordinance and not before findings of unavailable funding. Rule III, Section 2.1.

We further find that the trial court was correct in declaring that State supplemental pay must be used in the calculable base, viz., that Rule V, Section 8 of the pre-2009 Red Book is unenforceable under La. R.S. 33:2004(D). As no evidence of damages was presented to the trial court, any claim for injunctive relief was premature. The trial court therefore did not abuse its discretion is not granting injunc-tive relief.

On de novo review of the defendants’ cross-motion for summary judgment, and considering controlling State law, we find that the trial court correctly ruled that all State compensation must be included in the calculable base to determine the State-mandated increase of 2%. We therefore affirm the granting of the Parish’s summary judgment on liability insofar as the method,ology of determining | isthe amount of the State-mandated minimum increase and the obligation of the Parish to give raises in a sum equal to or greater than the State-required minimum longevity raise. However, we reverse the Parish’s summary judgment insofar as it dismissed all of the plaintiffs’ claims, specifically any finding as to damages. The trial court had no evidence to consider on individual damages in this bifurcated matter. Arguably, there must be a hearing on the calculation of Parish raises to show that in no instance, particularly in 2006, were the raises less than the State-mandated minimum required increases. We therefore remand for a determination as to what, if any, damages are applicable to the individual claims.

DECREE

For the foregoing reasons, the ruling of the trial court is affirmed in part as to the correct methodology to use in calculating annual increases, reversed in part as to the dismissal of the Firefighters’ individual damage claims, and remanded for an evi-dentiary hearing on individual damages.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

      . Rule II, Section 1 of the Red Book Ordinance recognizes Local 1374 as the grievance adjuster for the Firefighters. The "Red Book Ordinance" refers to a Jefferson Parish ordinance pertaining to Firefighter benefits and salary. Jefferson Par. Ordinance 18226 (1980).

      . La. R.S. 33:1992(B) provides:
      From and after the first day of August, 1962, each member of the fire department who has had three years continuous service shall receive an increase in salary of two percent and shall thereafter receive an increase in salary of two percent for each year of additional service up to and including twenty years. Both the base pay and accrued longevity shall be used in computing such longevity pay. (Emphasis added).

      .La. R.S. 33:2002 provides in part:
      (A)(1) In addition to the compensation now paid by any municipality, parish, fire protection district, or other political subdivision maintaining a fire department ... to every paid, regularly employed employee ... shall be paid extra compensation by the state in the amount of five hundred dollars per month for each such paid employee who has completed or who hereafter completes one year of service.

      .Red Book Rule V Pay Plan
      Section 2. Salary Increases
      2.1 An employee entering into the classified service at the prescribed minimum starting rate, authorized for a particular position, may be granted an annual merit increase on the first pay period in January, subject to the availability of funds. Thereafter, an employee will become eligible for all subsequent pay increases on the first pay period in January.
      Employees hired after January 1, 1990 will be entitled to the same salary increases. However, the eligibility of all pay increases of said employee, hired after January 1, 1990, will be their anniversary date of employment.
      An employee will become eligible for annual increases as per the following schedule.
      1. A five (5) percent increase (equal to one (1) step) of the Base Salary at the successful/satisfactory completion of the first through the tenth year; and
      2. A five (5) percent longevity increase of their Base Salary for the successful/sat-isfactoiy completion of the eleventh through the fifteenth year of service. The five (5) percent calculation will be used thereafter on the first pay period of the current year or their anniversary date of employment, whichever applies, through the fifteenth (15) step.
      3.Those employees who surpass the fifteen (15) steps plus the raise stated in RULE V, Section 2.1, paragraph 3, who would not receive a one (1) step increase shall receive a two and one/half (2 ¡4) percent or a half-step longevity increase in accordance with the pay plan, through the twenty-fifth step.

      . La. R.S. 33:2004(D) provides:
      The additional compensation paid by the state to municipal or parish fire department employees as provided by this Subpart shall be included in the calculation and computation of the total wages paid to the employee in the determination of employer contributions to any retirement system or pension fund of which such employee may be a member as well as in the determination of retirement eligibility and benefits which may accrue to the employee under any retirement system or pension fund, as well as in the determination of any other employee benefits, sick leave, or disability pay to which the employee might be entitled. (Emphasis added).

      . On May 26, 2009, the trial court granted the Parish’s exceptions and ordered the Firefighters to amend their petition to separately name each individual plaintiff. On June 10, 2009 and August 16, 2011, the Firefighters filed their First and Second Amended Petitions, respectively, naming individual plaintiffs.

      . The trial court’s May 14, 2012 consent order provided: "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the issue of liability shall be tried separately from the issue of damages[.]”

      . See note 5, supra.


author: ROLAND L. BELSOME, Judge.

text:
    Arrianne DUHON v. Charles BRILEY, Sr. Delvin Bickham v. Charles Briley, Sr.
    Nos. 2012-CA-1137, 2012-CA-1138.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2013.
    Rehearing Denied June 28, 2013.

      Bernard J. Rice, III, Gretna, LA, for Plaintiff/Appellee.
    John “Ross” E. Smith, Stampley & Smith, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

_LiAfter being locked out of their building, the plaintiffs, Arrianne Duhon and Da’ Avenue Sports Bar, LLC, filed this wrongful eviction and conversion suit against the defendant, Charles Briley, Sr. The defendant subsequently filed a reconventional demand for property damage caused by the plaintiffs.

The defendant now appeals the trial court’s judgment awarding the plaintiffs $175,722.99 in damages. On cross-appeal, the plaintiffs challenge the trial court’s judgment awarding the defendant $8,306.13 for property damage. We amend the plaintiffs’ award and affirm as amended.

FACTS AND PROCEDURAL HISTORY

On September 1, 2007, with the intent to operate a sports bar and reception hall, Ms. Duhon, as owner of Da’ Avenue Sports Bar, entered into two separate lease agreements with Mr. Briley for suites A and B located at 4201 Washington Avenue. Her intentions were to operate Da’ Avenue Sports Bar downstairs in Suite B and a reception hall upstairs in Suite A. Both leases were for a term of two 12years, from September 1, 2007 through August 31, 2009, with an option to renew for another two years or to buy the property. In addition to paying a $3,000 security deposits for each unit, Ms. Duhon was to pay $3,000 a month in rent for the reception hall, and $4,000 a month for the sports bar. In order to begin operating her businesses, Ms. Duhon had to perform major renovations to the units. Ms. Duhon’s aunt through marriage, Georgette Lemon, also known as “Queen,” assisted her in her business venture and loaned her the money for the start-up costs.

On June 2, 2008, less than one year into the lease, the defendant changed the locks to the units. The parties disagree as to the circumstances surrounding the lockout. Three days later, the plaintiffs filed suit against the defendant, asserting that he wrongfully evicted them from the leased premises and that he converted their possessions that remained on his property. Meanwhile, after the plaintiffs filed their first supplemental and amending petition, the defendant answered the suit and filed a reconventional demand, alleging that the property was abandoned.

Prior to trial, the plaintiffs filed a second supplemental and amending petition which included a descriptive inventory of items that were allegedly | ¡¡converted by the defendant. The defendant answered the second supplemental petition and amended his reconventional demand to include a request for attorney’s fees.

After trial, the court awarded the plaintiffs $175,722.99 plus legal interest, finding that the defendant wrongfully evicted the plaintiffs and converted their property in bad faith. It also awarded the defendant $8,306.13 plus legal interest for repairs.

This appeal followed.

STANDARD OF REVIEW

In reviewing a trial court’s findings of fact, appellate courts employ a “manifest error” or “clearly wrong” standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are more reasonable. Id. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. Moreover, when findings of fact are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Id. See also Pelleteri v. Caspian Grp. Inc. 02-2141, 02-2142, pp. 6-7 (La.App. 4 Cir. 7/2/03), 851 So.2d 1230, 1235.

^Regarding issues of law, the standard of review of an appellate court is simply whether the court’s interpretive decision is legally correct. Glass v. Alton Ochsner Medical Foundation, 02-412, p. 3 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 405. Accordingly, if the decision of the trial court is based upon an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court. Pelleteri, 02-2141, p. 7, 851 So.2d at 1235 (citation omitted); Ohm Lounge, L.L.C. v. Royal St. Charles Hotel, L.L.C, 10-1303, p. 4 (La.App. 4 Cir. 9/21/11), 75 So.3d 471, 474.

DISCUSSION

The defendant’s assignments of error focus on two claims: 1) the trial court erroneously found that he wrongfully evicted the plaintiffs when there was evidence to support that the plaintiffs intended to abandon the lease; and 2) the plaintiffs’ damages award was excessive and unsupported by the evidence. On the other hand, the plaintiffs assert that their damages award was too low and that the defendant should not have been awarded any damages for repairs. We will first address the abandonment issue; then, we will address the damages awards, starting with the plaintiffs’ award and finishing with the defendant’s award.

ABANDONMENT

Mr. Briley argues that the trial court erred in finding him liable for damages for wrongful eviction because he was legally justified in retaking possession of the leased property under the reasonable belief that the tenant intended to abandon the premises. He contends that the trial court misunderstood the situation and there was ample evidence to conclude that Ms. Duhon was abandoning the leased property.

| ¡-.Under the provisions of La. C.C. art. 2682, a lessor is bound from the very nature of the contract, and without any clause to that effect to do three things. One of those things is “[t]o protect the lessee’s peaceful possession for the duration of the lease.” La. C.C. art. 2682(3); See also Girgis v. Macaluso Realty Co., Inc., 00-753, p. 4 (La.App. 4 Cir. 1/31/01), 778 So.2d 1210, 1212. A lessor who fails to meet his or her obligations under the provisions of La. C.C. art. 2682 by wrongfully dispossessing the lessee of the premises is generally liable for any resulting damages. Id. The Louisiana Code of Civil Procedure provides an exception to that liability where the lessor follows the eviction procedures set forth in arts. 4701-4735. Id.

The record is clear that the defendant failed to follow the required eviction procedure. However, there is also a jurisprudential exception which exempts the lessor from liability for failing to comply with the eviction procedure before taking possession if the lessee unjustifiably abandons the leased premises. Girgis, 00-753, p. 4, 778 So.2d at 1212-13 (citations omitted). “Abandonment of a leased premise ‘requires voluntary relinquishment of the premises by the lessee with the intent to terminate without vesting ownership in another.’ ” Girgis, 00-753, p. 4, 778 So.2d at 1213 (citation omitted). When a lessor is not justified in believing that the leased premises are abandoned, the use of self-help to retake the property constitutes a trespass and wrongful seizure of the lessee’s property. Girgis, 00-753, pp. 4-5, 778 So.2d at 1213 (citation omitted). Abandonment only occurs if the lessee had intent to abandon the premises. Girgis, 00-753, p. 5, 778 So.2d at 1213. Whether a leased premise has been abandoned is a finding of fact subject to the | fimanifest error-clearly wrong standard of review. Girgis, 00-753, pp. 4-5, 778 So.2d at 1213 (citation omitted).

At trial, the defendant testified that he believed that his tenant was moving out. He explained that Ms. Lemon told him that if he did not waive the rent while allowing them to ñx a termite issue in the building, they were going to move. According to his testimony, when he refused, Ms. Lemon told him: “We’re moving.” He stated that on June 1, 2008, he went to the property after receiving a phone call from a neighbor, who informed him that his tenants were moving and that they took the air conditioners. When he arrived, his air conditioning units were missing, and he observed that some of the plaintiffs’ bar equipment had been removed and placed into a U-Haul truck. At that time, he was informed that the truck had hauled two other loads. The defendant also pointed out that Ms. Duhon had not paid the rent; she did not renew the bar’s liquor license, which had expired on the 81st of May; and she never requested to re-enter the leased premises.

To the contrary, Ms. Lemon testified that she never told the defendant that Ms. Duhon was vacating the premises, and that, on June 2, 2008, the defendant locked them out of the building. Consistently, Ms. Duhon testified that she never vacated the premises, she had until June the 5th to pay her rent, and she had only moved some tables used for a wedding reception the previous weekend. She further stated that she had applied to renew her liquor license, but could not obtain one due to the termite infestation. She also stated that the approval was still pending. In addition, she claimed that Mr. Briley attempted to operate his own sports bar after locking them out.

|7Ms. Duhon and the defendant both agreed that she never told him she was leaving the premises. The defendant further acknowledged that Ms. Lemon, one of his primary contacts for the sports bar, requested entrance onto the premises after he had changed the locks, but he denied her entry.

Here, the trial court was faced with two possible interpretations of the evidence: 1) Ms. Duhon moved out intending to abandon the lease; or 2) Ms. Duhon did not move out or intend to abandon the lease. The trial court considered the evidence and found that the defendant wrongfully evicted the plaintiffs from the leased premises. In its oral reasons, the trial court found that the defendant did not prove that Ms. Duhon abandoned the lease. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra.

The trial court’s conclusion is supported by the record, thus we cannot find manifest error in its ruling that the plaintiffs did not abandon the lease. Since the defendant did not file formal eviction proceedings, the trial court’s judgment determining that the plaintiffs were wrongfully evicted was legally correct. Glass, supra.

DAMAGES

Both the plaintiffs and the defendant contest the damages award. The trial court awarded the plaintiffs $175,722.99 plus legal interest. The trial court also awarded the defendant $8,306.13 plus legal interest.

Rif the lessee is evicted, the lessor is answerable for the damage and loss which he sustained by the interruption of the lease. Pelleteri, 02-2141, p. 13, 851 So.2d at 1238. La. C.C. art.1995 provides that the measure of damages for an obli-gor’s failure to perform a contract is “the loss sustained by the obligee and the profit of which he has been deprived.” La. C.C. art.1999 provides that “[w]hen damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages.” Article 1999 applies to damages from a breach of a contractual obligation.

In Fo-Coin Co. v. Drury, 349 So.2d 382 (La.App. 4 Cir.1977), this Court reiterated that damages from wrongful eviction are not only contractual but also are delictual. This Court stated that “[w]hen a lessor takes the law in his hands by unlawfully dispossessing a tenant, he commits a trespass and is liable for general damages.” Id. at 384. La. C.C. art. 2324.1, which applies to tort liability, also provides that “[i]n the assessment of damages ... much discretion must be left to the judge or jury.”

PLAINTIFFS’ DAMAGES

The defendant contends that the plaintiffs’ damages award was excessive and unsupported by the evidence. The award was apportioned as follows: $78,625.09 in lost contents, $78,625.09 in expenses; $7,000 for deposit returns; $57,180.90 in lost wages, and $10,000 for mental anguish.

EXPENSES AND CONTENTS

The defendant objects to the award of damages in the amount of $22,917.00 for loss of contents and $78,625.09 for expenses, arguing that Ms. Lemon actually | ¡Incurred these expenses, not Ms. Duhon. Mr. Briley does not raise an issue with the amount of the awards; rather, he contends that Ms. Duhon did not pay for the improvements or other items used to run the bar.

At trial, both Ms. Duhon and Ms. Lemon testified that Ms. Lemon loaned Ms. Du-hon the money for the business expenses and improvements with the expectation of being repaid. Ms. Lemon testified that, in total, she advanced more than $700,000 to Ms. Duhon. Plaintiffs’ exhibit 25 verifies that Ms. Duhon signed a $25,000 promissory note to repay Ms. Lemon approximately one-month before the lease was executed. Ms. Duhon further testified that she eventually signed similar agreements because the improvement expenses continued to increase. She acknowledged that she was asked to provide the other agreements for trial; however, she could only find the first agreement.

As the record adequately supports the conclusion that Ms. Lemon advanced multiple loans to Ms. Duhon for the sports bar, we cannot say that the trial court abused its discretion in assessing a damages award for the cost of contents and expenses to Ms. Duhon.

Additionally, the plaintiffs claim that the contents award was erroneously reduced. They argue that the parties stipulated that $28,267.00 was the value of the contents. They assert that the expert report valued the items as of the day they were lost, so the items were already significantly depreciated. They conclude that the trial court should not have further reduced the award. The lease provided that the immoveable items (improvements) would become the property of Mr. Briley at the end of the lease. In instances where the lessee has made improvements and the lessor wrongfully deprives him of that use during the lease term, the lessee is |10entitled to recover damages calculated on the basis of the value of the improvements proportioned over the remaining term of the lease, even if the lease provides that the improvements become the lessors’ property at the end of the lease. Mahayna, Inc. v. Poydras Ctr. Assoc, 95-932, p. 3 (La.App. 4 Cir. 12/14/95), 665 So.2d 166, 168 (citation omitted); Smith v. Shirley, 01-1249, pp. 5-6 (La.App. 3 Cir. 2/6/02), 815 So.2d 980, 985 (citations omitted).

In its oral reasons, the trial court explained that it reviewed the parties’ stipulation and awarded Ms. Duhon 2/3 of the value for the listed immovables and full value for the movables. It reasoned that there was 16 months remaining on the 24-month lease, which is 2/3 of the lease. Since the trial court properly proportioned the value of the improvements pursuant to the remainder of the lease, we find no abuse of discretion.

LOST INCOME/PROFITS

Next, the defendant claims that the trial court erred in awarding the plaintiffs damages for lost profits. He asserts that the trial court relied upon Ms. Du-hon’s tax returns from 2007 to 2008 to determine her loss in business income or profits; however, it ignored the necessary expenses which were not included on the returns. We agree.

During Ms. Duhon’s testimony, she admitted that the amount on her tax returns did not include expenses. The court interjected that these expenses would not be on her tax returns, because Ms. Lemon was the “money woman” who paid for all of the expenses. Thus, she would be lying on her returns if she included those amounts. The trial court ultimately awarded the plaintiffs $57,180.90 for |, dost wages (profits). The trial court reached this figure by calculating an average monthly income based on Ms. Duhon’s tax returns. However, it failed to consider the fact that the admittedly unclaimed expenses far outweighed the reported business income. Thus, there was no profit at all.

A claim for lost profits based solely on the testimony of the injured party and unsubstantiated by other evidence does not constitute reasonable certainty. Louisiana Joint Underwriters of Audubon Ins. Co. v. Gant, 439 So.2d 1153, 1157 (La.App. 4 Cir.1983).

Considering that the evidence as a whole does not establish this claim, we find that the trial court abused its discretion in assessing a damages award for lost profits. Therefore, the plaintiffs’ damages award is reduced by $57,180.90.

RETURN OF DEPOSITS

The defendant also claims that the trial court erred in awarding $7,000 for the return of deposits when the leases clearly identify that the amount paid in deposits was $6,000, $3,000 per unit. At trial, Ms. Duhon testified that she paid $7,000 in deposits; however, she concedes on appeal that the lease reflects a $6,000 deposit. She does not dispute this amount or otherwise allege that she actually paid $7,000. Consequently, we further reduce the plaintiffs’ award by $1,000.

MENTAL ANGUISH

Finally, the defendant attacks the general damages award of $10,000 for mental anguish, suggesting the award is punitive in nature.

[12A conversion consists of an act in derogation of the plaintiffs posses-sory rights; and any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time, is a conversion. Issues of fault, intent, negligence, knowledge or ignorance, and/or good faith are not involved in actions for tortious conversion. Labbe v. Premier Bank, 618 So.2d 45, 46 (La.App. 3 Cir.1993) (citation omitted). Damages for mental anguish and inconvenience arising from the loss of use of property have been allowed in tortious conversion cases. Boisdore v. International City Bank & Trust Co., 361 So.2d 925, 932 (La.App. 4 Cir.1978), writ denied, 363 So.2d 1384 (La.1978) (citations omitted).

In support of its conclusion that the trial court really awarded punitive damages, the defendant points out that the trial court found that he converted the plaintiffs’ property in bad faith, which is inapplicable in conversion cases. In its oral reasons, the trial court made the following statement: “It’s really bad faith. I mean, it’s a wrongful eviction plus conversion. Therefore, I think that equals mental anguish. All right? So, I mean, you just can’t do that, especially when you have a contract.” However, the record reflects that the trial court stated that there was a bad faith conversion in an attempt to explain why general damages were warranted when contract cases do not usually allow for them. The court then explained that mental anguish was warranted because the case involved wrongful eviction and tor-tious conversion.

It appears that the trial court improvidently applied the bad faith standard in establishing the conversion claim. While a finding of bad faith was not necessary to substantiate this claim, we cannot say that such a ruling transformed the trial | ^court’s general damages award into an award for punitive damages, making the award erroneous.

The defendant also challenges the general damages award as excessive.

It is difficult to assess damages of this sort accurately because, as in awards for pain and suffering, the damages cannot be calculated with exactitude. However, the mere fact that plaintiff was wrongfully deprived of his property necessarily means that some mental anguish and humiliation and embarrassment resulted. Boisdore, 361 So.2d at 932 (citations omitted). It is much more difficult to arrive at the amount than to conclude that plaintiff is entitled to these damages.

Ms. Duhon discussed her mental anguish and humiliation at trial:

Everything I had, everything I borrowed, everything — I have four kids looking in my face. “Mom, what are we going to do?” I lost everything attached to that place, everything. I almost lost my home ... to face my peers, to face my family that I haven’t been taking care of. I’m the older child of four. I have been taking care of my brothers and sisters ... it took me years, two years just to get a job to face the world again.

She and Ms. Lemon testified that she was very closely connected to the community as she grew up in the area, and they would give fundraisers to develop goodwill in the community. They also testified that they had heard that the defendant was advertising on the radio to promote his own bar business on the premises.

The defendant argues that the largest award for mental anguish in a conversion claim was $3,000; however, he is incorrect in this assertion. In Boisdore, although this Court noted that awards for this element have been particularly small, it upheld a $7,500 mental anguish award, finding that the | uplaintiffioccupant was wrongfully deprived of his property for one year. Id. at 933. Likewise, under the circumstances in this case, we do not find that the $10,000 award for mental anguish was excessive, or otherwise constituted an abuse of the trial court’s discretion.

In contrast, the plaintiffs assert that the trial court failed to consider increasing the general damages award for her lost business opportunity. In particular, she cites to Pelleteri, supra, in support of her argument that part of her damages include loss of efforts expended in preparing the business to become profitable, and the denial of her opportunity to determine whether the business would become a long-term thriving business.

Pelleteri, however, is distinguishable. The court in Pelleteri reviewed both the landlord and the tenant’s expert testimony. They based their expert opinions on such things as a budget prepared by the shareholders of the company, profits at a comparable restaurant, and data from the National Restaurant Association. The Court found that the tenant’s expert’s comparison with another restaurant was inappropriate because that restaurant served a different type of clientele. Nevertheless, the Court found that under the facts of that case, the tenant otherwise proved its losses. For example, there was testimony that the tenants had substantial restaurant experience, and the restaurant, located on Esplanade Avenue, was closed just prior to Jazz Fest, a particularly lucrative period for restaurants and bars in New Orleans. Id, 02-2141, pp. 4, 6, 16-17, 851 So.2d at 1233, 1234, 1239-41.

|1BIn this case, there was no expert testimony to support a claim for efforts expended and lost business opportunity. Instead, Ms. Duhon and Ms. Lemon, who had no prior bar or reception hall experience, testified that the business revenues were steadily increasing. Though promising, on appeal, the plaintiffs assert they were robbed of the opportunity to find out whether the business would become lucrative in the future. Unlike in Pelleteri, we find that this testimony does not sufficiently prove a lost business opportunity, and we cannot speculate such a loss. Id., 02-2141, p. 16, 851 So.2d at 1240. Accordingly, we find no abuse in discretion in the trial court’s failure to award damages for lost business opportunity not supported in the record.

DEFENDANT’S DAMAGES

The plaintiffs further assert that the trial court improperly awarded the defendant damages as a plaintiff in reconvention. They do not challenge the amount; rather, they assert that they were locked out in the middle of renovations and precluded from finishing the necessary repairs. Thus, they conclude that the defendant should have been required to take the property in the condition he found it when he illegally changed the locks.

The defendant testified that he incurred expenses for repairs made to the building, such as fixing holes, painting, and finishing steps which were removed by Ms. Duhon and never completed. In its oral reasons, the trial judge opined that the defendant was not responsible for these repairs, and further awarded him $8,306.13. .Given that the record supports the trial court’s conclusion, we cannot say that the trial court abused its discretion in awarding the defendant damages for the cost of repairs.

| ^CONCLUSION

Based on the foregoing, the plaintiffs’ damages award is reduced by $58,180.90. In particular, we reduce the award for lost income/wages by $57,180.90, and the deposit award by $1,000. Accordingly, the trial court’s judgment awarding the plaintiff $175,722.99 is amended to $117,542.09. In all other respects, the judgment is affirmed.

AMENDED; AFFIRMED AS AMENDED

      . The Avenue Sports Bar, LLC was established July 1, 2007.

      . The downstairs lease, for the sports bar, reflects that the lease was changed from 24 to 60 months. However, Mr. Briley denied changing the term from 24 to 60 months and the plaintiff admitted that he did not meet with her to make such a change in the written lease. Therefore, the trial court treated both leases as having a term of 24 months.

      . At the time of the lockout, the sports bar was operational; however, the reception hall was still undergoing renovations, and had never opened for business.

      . The defendant testified that he was called on June 1, 2008, and informed that the plaintiffs were moving out and that they had removed the defendant’s two air conditioning units from the roof. When he arrived at the property, he observed a U-Haul truck which contained the plaintiffs’ bar equipment inside. He was informed that this was their third load. Conversely, Ms. Duhon testified that they were only moving tables and chairs that were used for a wedding the previous weekend. The police officer called to the scene that day testified that the building was vacant; however, the police officer called out to the scene the following day, when the defendant refused to allow Ms. Lemon inside to retrieve her gun, testified that the building was furnished.

      .Delvin Bickham filed a separate suit alleging that the defendant illegally took possession of his work tools and sound equipment left on the premises. His lawsuit, district court case number 2008-6656, was consolidated with the plaintiffs’ lawsuit, district court case number 2008-6036; however, it was dismissed by the trial court when Mr. Bickham did not appear for trial. Thus, Mr. Bickham’s lawsuit does not form part of this appeal.

      . Conveniently, the defendant relies on Ms. Lemon’s assertions to support his argument that the plaintiffs were moving out and the lease was abandoned; however, he attempts to discount her requests to re-enter the premises since the request did not come from Ms. Duhon herself.

      . Notably, the trial court reduced the award to offset a four-month period when the occupant used the premises without paying rent.