author: JAMES F. McKAY III, Judge.

text:
    John JOHNSON, et al. v. Harriet Fleming RAY and Nursefinders, Inc. Desiree Johnson v. Jens Eichorn, M.D., the Administrators of the Tulane Educational Fund d/b/a Tulane University Health Science Center or Tulane University School of Medicine, Nursefinders, Inc. and National Union Fire Insurance Company of Pittsburg, PA.
    Nos. 2012-CA-0006, 2012-CA-0007.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2012.

      D. Russell Holwadel, Adams, Hoefer, Holwadel & Eldridge, L.L.C., Paul M. Sterbcow, Lawrence S. Kullman, Lewis, Kullman, Sterbcow & Abramson, New Orleans, LA, for Plaintiff/Appellee, Desiree Johnson.
    Thomas A. Cowan, J. Roslyn Lemmon, Cowan & Lemmon, L.L.P., Deborah A. Van Meter, Lorraine P. Mclnnis, McGlin-chey Stafford, PLLC, New Orleans, LA, for Defendants/Appellants, Nursefinders, Inc., and National Union Fire Insurance Company, Inc.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

hln this survival and wrongful death action, the defendants, Nursefinders, Inc. and National Union Fire Insurance Company, appeal the trial court’s judgment in favor of the plaintiff, Desiree Johnson. We affirm. The defendants also raise an exception of prescription, which we deny.

FACTS AND PROCEDURAL HISTORY

On the night of May 11, 2000, John Johnson was admitted to Tulane University Medical Center. Prior to his admission, Mr. Johnson, an insulin-dependent diabetic ■with a history of drug use, had experienced abdominal and back pain accompanied by vomiting, which lead to severe dehydration. His admitting and treating physician, Dr. Tracy Conrad, diagnosed him with diabetic ketoacidosis. Dr. Conrad’s plan was to get Mr. Johnson’s diabetic ketoacidosis under control with gentle hydration and management of blood sugars through insulin therapy. At approximately 9:00 a.m., on the morning of May 12, 2000, Dr. Conrad determined that Mr. Johnson’s condition was improving and he continued to prescribe general hydration, antibiotics, and management of blood sugars.

|2Puring the day on May 12, 2000, Mr. Johnson was cared for by Tulane University Medical Center’s regular nursing staff. One of those nurses, Ms. D. Williams, performed two head-to-toe assessments of Mr. Johnson. In her notes, she indicated that Mr. Johnson’s abdomen was soft and that he had active bowel sounds and yellow urine. She also noted that he had equal range of motion, equal and strong extremity strength, and a steady gait.

At 7:00 p.m., on May 12, 2000, Mr. Johnson’s nursing care was assumed by Harriet Fleming Ray, an agency nurse provided by Nursefinders, Inc. Normally, Ms. Ray would perform an initial assessment of each patient under her care and then return to conduct a full head-to-toe assessment. When Ms. Ray first visited Mr. Johnson’s room, Mr. Johnson and his wife, Desiree, informed her that Mr. Johnson’s legs were numb and that his leg had flopped out of the bed. Ms. Ray told the Johnson’s that this was caused by Mr. Johnson’s fever. Ms. Ray did not report this change in Mr. Johnson’s condition to the charge nurse or a physician.

When Ms. Ray conducted the head-to-toe assessment of Mr. Johnson at approximately 8:15 p.m., on May 13, 2000, she noted that he had a firm abdomen and weak extremity strength. However, there is no indication if this weakness was equal or unequal. Ms. Ray also failed to note any comments under “sensation” and was “unable to assess” Mr. Johnson’s mobility. Again, Ms. Ray did not report this change in condition to a charge nurse or a physician.

At approximately 3:40 a.m., on May 13, 2000, Mr. Johnson complained of being unable to move his legs at all. The nurse’s notes indicated that he had not |seliminated since 1:30 p.m. the previous day. At his time, Ms. Ray inserted a Foley catheter and relieved Mr. Johnson of a significant amount of dark brown urine. It was also at this time that Ms. Ray first notified the charge nurse of the change in Mr. Johnson’s condition. The charge nurse notified Dr. Jens Eichorn, a resident in internal medicine. Mr. Johnson was likely already a paraplegic with little chance of recovery at this time.

An MRI revealed an epidural abscess at the T-5 to T-7 level. A neurosurgeon was called in and emergency spinal surgery was performed. Following the surgery, Mr. Johnson was a paraplegic below his mid-thoracic region.

On March 27, 2001, Mr. and Mrs. Johnson initiated a Medical Review Panel proceeding against Tulane and Mr. Johnson’s treating physicians. On January 14, 2003, Mr. and Mrs. Johnson supplemented their complaint to name “Nurse Harriet.” On December 29, 2003, they again supplemented their complaint to name Harriet Ray and Nursefinders. When the Patient’s Compensation Fund notified Mr. and Mrs. Johnson that Nursefinders and Ms. Ray were not qualified healthcare providers under the Louisiana Medical Malpractice Act, the Johnsons filed a lawsuit against Nursefinders and Ms. Ray in Orleans Parish Civil District Court. After the Medical Review Panel rendered its opinion concerning the qualified defendants, the plaintiffs then amended their lawsuit to add the qualified defendants.

|4On August 18, 2008, Mr. Johnson died due to complications from his paraplegia. On June 23, 2009, Mrs. Johnson filed a wrongfül death and survival action in Orleans Parish Civil District Court. The trial court consolidated this lawsuit with the pending medical malpractice action for purposes of discovery and trial. In October of 2010, the trial court severed the two cases. The wrongful death and survival action proceeded to trial on March 15 and 16, 2011. After trial, the court awarded the following damages: $900,000.00 for survival; $150,000.00 for wrongful death; $126,105.14 for medical expenses; $178,233.50 for lost wages; and $4,239.00 for funeral and burial expenses.

On June 13, 2011, Mrs. Johnson filed a motion for new trial to establish date of first judicial demand for pre-judgment interest, contending that interest should be calculated from the filing of the 2004 lawsuit. She later amended her request to seek interest from the date of the filing of the PCF complaint. The trial court agreed with the plaintiff and issued a judgment decreeing that interest on the survival, medical expenses, and lost wages damages accrues from March 27, 2001. Following the judgment on new trial, the plaintiff filed a motion to tax costs totaling $33,641.37. The trial court awarded these costs.

On September 27, 2011, Nursefinders filed a petition and order for suspensive appeal of the original judgment, the judgment on motion for new trial, and the judgment awarding costs. On February 16, 2012, Nursefinders filed an exception of prescription in this Court.

|,DISCUSSION

On appeal, the defendants raise the following assignments of error: 1) the finding that the conduct of Nursefinders’s licensed practical nurse (LPN) caused Mr. Johnson’s paraplegia is erroneous; 2) the trial court erred in excluding the expert opinions of Dr. Donald Dietze, the neurosurgeon who performed the emergency laminectomy on Mr. Johnson; 3) the trial court erred in allowing a non-practicing rehabilitation doctor, Dr. Harold Katz, to testify as to expert opinions in neurology/neurosurgery, acute care of spinal cord injuries, and the standard of care applicable to acute care hospital nurses; 4) the trial court’s allocation of 100 % fault to Nursefinders and the allocation of no comparative fault to Tulane and its staff and physicians is erroneous; 5) wrongful death damages of $150,000.00 is an excessive award to a wife who has been separated from her husband for six years at the time of death; 6) the judgment erroneously awards lost wages that are completely unsupported by fact or expert evidence; 7) the judgment on motion for new trial erroneously calculates interest on the survival damages in this suit filed in 2009 against non-qualified healthcare providers as relating back to the 2001 filing of the Patient’s Compensation Fund Complaint against qualified providers who were not parties to the judgment awarding the damages; and 8) specific items of costs taxed by the trial court are not allowed by statute or are an abuse of the court’s discretion. The defendants also raise an exception of prescription.

| bFactual Findings

In their first specification of error, the defendants contend that the trial court erroneously found that the conduct of Ms. Ray caused Mr. Johnson’s paraplegia. The standard of review for medical malpractice claims is the same manifest error/clearly wrong standard applicable to ordinary negligence actions. McCarter v. Lawton, 2009-1508 (La.App. 4 Cir. 7/21/10), 44 So.3d 342. A court of appeal may not set aside the findings of fact made by a jury or trial court unless those findings are clearly wrong or manifestly erroneous. See Stobart v. State through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). In order to find that the factfinder’s determinations were manifestly erroneous or clearly wrong: (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 or manifestly erroneous. See Stamps v. Dunham, 07-0095 (La.App. 4 Cir. 9/19/07), 968 So.2d 739. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id.

In the instant case, Ms. Ray failed to notify the charge nurse or a physician of the deterioration in Mr. Johnson’s condition until 3:40 a.m. on May 13, 2000, some eight hours after she first became aware of the deterioration in his condition. At trial, Nancy McNamara R.N., the plaintiffs expert in nursing, testified that during the head-to-toe initial assessment performed by Ms. Ray, the nurse had a |7duty to report any “untoward change” in patient’s condition. In Ms. McNamara’s opinion, Ms. Ray breached the standard of care for nurses by failing to report the numerous, ominous untoward changes in Mr. Johnson’s condition for over eight hours. Dr. Conrad, who also testified at trial, believed that by failing to call a physician, Ms. Ray had effectively reached a diagnosis and substituted her judgment for that of a doctor. Dr. Howard Katz, an expert witness in physical medicine and rehabilitation with a board certification in spinal cord injury, testified that Ms. Ray’s inaction caused Mr. Johnson’s paraplegia. Ms. Ray also testified at trial. The trial court had “little confidence in her nursing skills and knowledge” and noted that Ms. Ray “did little to acquit herself from the allegations of negligence.”

Based on the record before this Court, it was reasonable for the trial court to conclude that Ms. Ray had breached the applicable standard of care by failing to notify anyone of the change in Mr. Johnson’s condition. Accordingly, we find no error in the trial court’s finding that Ms. Ray’s conduct caused Mr. Johnson’s paraplegia.

Expert Testimony of Dr. Donald Dietze

In their second specification of error, the defendants contend that the trial court erred in excluding the expert testimony of Dr. Donald Dietze. Dr. Dietze was the neurosurgeon who performed the emergency laminectomy on Mr. Johnson. The plaintiff assumed that Dr. Dietze was being called as a fact witness because the defendants had elected to proceed to trial without a liability expert or an expert |son medical causation. When the defendants attempted to have Dr. Dietze offer expert opinion on causation, the plaintiff objected and the trial court sustained their objection. Under La. C.C.P. art. 1428, the defendants were obligated to timely supplement their discovery to identify Dr. Dietze as an expert and to set forth his opinions. The defendants did not do this. Furthermore, a trial court has great discretion to exclude testimony for the failure to timely identify witnesses under La. C.C.P. art. 1428. See Chapman v. Regional Transit Authority, 95-2620 (La.App. 4 Cir. 10/2/96), 681 So.2d 1301. Accordingly, we find no error or abuse of discretion in the trial court’s excluding the expert testimony of Dr. Dietze.

Expert Testimony of Dr. Howard Katz

In their third specification of error, the defendants contend that the trial court erred in allowing Dr. Howard Katz to testify as an expert witness in the areas of neurology/neurosurgery, acute care of spinal cord injuries, and the applicable standard of care applicable to acute hospital nurses.

Dr. Katz has been a practicing physician for twenty-five years and is board certified in physical medicine and rehabilitation, as well as being board certified in spinal cord injury since 2000. Dr. Katz evaluated Mr. Johnson on October 16, 2007. Dr. Katz also reviewed the hospital records that evidenced Mr. Johnson’s efforts at rehabilitation and documented the residual deficits he sustained as a result of the delayed diagnosis.

The defendants contend that Dr. Katz is not qualified under La. R.S. 9:2794(D), the statute that establishes physician qualifications for expert testimony on |3whether a “physician departed from the accepted standards of medical care.” However, Dr. Katz was never identified as a liability witness on any standard of care issue; he issued an opinion regarding the causation of Mr. Johnson’s paraplegia. There is nothing in the statute that prevented Dr. Katz from testifying regarding causation. In fact, in Hebert v. Podiatry Ins. Co. of America, 96-567 (La.App. 3 Cir. 10/9/96), 688 So.2d 1107, an expert not qualified to offer an opinion regarding the standard of care was specifically allowed to testify regarding causation. Accordingly, we find no error in the trial court’s allowing Dr. Katz to offer expert testimony as to causation.

Allocation of Fault

In their fourth specification of error, the defendants contend that the trial court erred in allocating 100% fault to Nursefinders and allocating no comparative fault to Tulane and its staff and physicians. The determination of whether comparative fault applies in a particular case is essentially a factual one and subject to the manifest error standard of review. Davis v. Hoffman, 2000-2326 (La.App. 4 Cir. 10/24/01), 800 So.2d 1028, 1081. Only if the apportionment of fault is found to be clearly wrong can an appeals court adjust percentages, and then only to the lowest/highest point within the factfinder’s reasonable discretion. Id. In the instant case, the trial court agreed with the medical review panel that Dr. Eichorn may not have acted with sufficient urgency in obtaining the radiology scans, but the trial court found that this was of no consequence given that Mr. Johnson was already irreversibly paralyzed by the time Dr. Eichorn was alerted to his condition. ImThere is also no indication that Dr. Conrad’s initial diagnosis and treatment of Mr. Johnson was deficient in any way, and as stated above any deviation after 3:40 a.m. on May 12, 2000 would not have made a difference. Furthermore, there is nothing in the record to indicate that Ms. Williams breached the standard of care in her care of Mr. Johnson. Accordingly, we find no error in the trial court’s allocation of 100% fault to Nursefinders.

Wrongful Death Damages

In their fifth specification of error, the defendant’s contend that $150,000.00 in wrongful death damages was an excessive award to Mrs. Johnson. A trial court’s assessment of quantum is entitled to great deference on review because it is a determination of fact. Menard v. Lafayette Ins. Co., 2009-1869, p. 14 (3/16/10), 31 So.3d 996, 1007. Therefore, an appellate court should rarely disturb an award on review. Id. It is only when an award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). It is only when an abuse of discretion is found that the reviewing court will determine the highest or lowest point within the court’s discretion. Guillot v. Daimlerchrysler Corp., 2008-1485, p. 30 (La.App. 4 Cir. 9/24/10), 50 So.3d 173, 196.

In the instant case, the defendants base their argument on the fact that Mr. and Mrs. Johnson had been separated for six years at the time of his death in ^addition to prior separations and a period where Mr. Johnson was incarcerated for a drug conviction. The trial court, however, was aware that Mr. and Mrs. Johnson were separated at the time of his death, but it still found that “[t]he evidence established she cared for him emotionally and physically and suffered a significant loss as a result of his death.” Based on the record before this Court, there is nothing to suggest that the foregoing is not true. Therefore, an award of $150,000.00 in wrongful death damages to Mrs. Johnson appears to be reasonable. Accordingly, we find no abuse of discretion in the trial court’s award of wrongful death damages to Mrs. Johnson.

Lost Wages

In their sixth specification of error, the defendants contend that the trial court erred in awarding lost wages that were completely unsupported by fact or expert evidence. The trial court found that Mr. Johnson was rendered totally disabled as a result of his permanent paraplegia. At trial, the plaintiffs presented the Social Security Administration’s Itemized Statement of Earnings for Mr. Johnson. This statement, which was not refuted, reflected that Mr. Johnson’s average earnings were $20,988.00 per year prior to May 12, 2000. Therefore, the trial court awarded $173,233.50 in lost wages for the period of time from May 12, 2000 to Mr. Johnson’s death on August 11, 2008. The amount of Mr. Johnson’s average annual earnings multiplied by the number of years he lived after May 12, 2000 comes to roughly the amount awarded by the trial court in its award for lost wages. A claim for lost wages does not have to be proven by mathematical certainty, it |12only requires such proof as reasonably establishes the claim. McLaughlin v. Royal Sonesta, Inc., 626 So.2d 438 (La.App. 4 Cir.1993). Accordingly, we find no error in the trial court’s awarding $173,233.50 in lost wages.

Pre-judgment Interest

In their seventh specification of error, the defendants contend that the judgment on the motion for new trial erroneously calculated interest on the survival damages in the suit filed in 2009 against non-qualified healthcare providers as relating back to the 2001 filing of the PCF complaint against qualified providers who were not parties to the judgment awarding the damages. When the plaintiffs filed their complaint with the PCF, they were not aware that Nursefinders and Ms. Ray were not covered under the act; as far as they knew, Ms. Ray was employed by Tulane and they had no knowledge that Nur-sefinders was even involved in the incident before discovery. Upon learning that Nursefinders and Ms. Ray were not qualified under the act, the plaintiffs filed suit against them in 2004. After Mr. Johnson’s death, Mrs. Johnson filed a wrongful death and survival action in 2009. The trial court consolidated these two lawsuits.

There is no prohibition against awarding pre-judgment interest for the survival damages from the date the medical review panel was instituted. In fact, La. R.S. 40:1299.47(M) states: “Legal interest shall accrue from the date of filing of the complaint with the board in a judgment rendered by a court in a suit for medical malpractice brought after compliance with this part.” It makes no difference whether or not the defendants were qualified healthcare providers. La. | lsR.S. 40:1299.47(M) reflects the legislature’s determination that the general rule of interest accrual in tort actions should be adjusted to account for the statutorily imposed delay that medical malpractice claims face. See Hall v. Brookshire Bros., Ltd., 2002-2404 (La.6/27/03), 848 So.2d 559. Furthermore, as stated above, the Johnsons believed that Ms. Ray was employed by Tulane and they were unaware of the involvement of Nursefinders. Once their identity and involvement were known, the Johnsons added them to the PCF complaint. Accordingly, we find no error in the trial court’s awarding prejudgment interest from the date of filing of the PCF complaint.

Costs

In their eighth specification of error, the defendants contend that specific items of costs taxed by the trial court were not allowed by statute or were an abuse of the court’s discretion. According to La. R.S. 13:3666 and La. R.S. 13:4533, as well as La. C.C.P. art.1920, the trial court has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Suprun v. Louisiana Farm Bureau Mutual Ins. Co., 2009-1555 (La.App. 1 Cir. 4/30/10), 40 So.3d 261, 267. Costs incurred in the 2004 lawsuit are based on claims that were incorporated into the instant case. It is unlikely that these costs will be awarded again. Therefore, it was not an abuse of discretion for the trial court to award them. There was also no abuse of discretion in the trial court’s awarding the plaintiffs’ medical expert fees.

| uException of Prescription

Nursefinders and National Union Fire Insurance Company have also brought an exception of prescription in this Court pursuant to La. C.C.P. art. 2163. They contend that all claims for damages allegedly caused by Ms. Ray’s care are prescribed under La. R.S. 9:5628.

Mr. and Mrs. Johnson initiated a medical review panel proceeding within a year of the incident that caused Mr. Johnson’s paraplegia. Upon learning of Ms. Ray’s identity and the involvement of Nursefin-ders, the Johnsons added them to the complaint. During the pendency of the medical review panel, prescription was suspended. When Mr. and Mrs. Johnson were notified that Nursefinders and Ms. Ray were not qualified healthcare providers, suit was filed in Civil District Court within the sixty (60) day period provided for by La. R.S. 40:1299.47 A(2)(a). Prescription was still suspended during this period. After the medical review panel rendered its opinion concerning the remaining defendants, Mr. and Mrs. Johnson amended their lawsuit to include these defendants. On August 18, 2008, Mr. Johnson died. Less than a year from the date of his death, Mrs. Johnson filed suit for Mr. Johnson’s wrongful death and survival claims on June 24, 2009. The two lawsuits were consolidated, but later severed for trial.

The right to recover the pre-death damages suffered by Mr. Johnson, and Mrs. Johnson’s right to sue for her own damages for her husband’s wrongful death were two separate causes of action that vested in Mrs. Johnson upon Mr. Johnson’s death pursuant to La. C.C. arts. 2315.1 and 2315.2. Louisiana courts have held that |1fithese two causes of action are vested property rights that vest immediately upon the death of plaintiffs decedent. Dean v. State, Department of Transportation and Development, 32,816 (La.App. 2 Cir. 12/8/99), 749 So.2d 846. This right is heritable regardless of whether a suit had already been filed by the decedent. See Guidry v. Theriot, 377 So.2d 319 (1979). In the instant case, before Mr. Johnson passed away, his survival damages were pending in the 2004 lawsuit; his claims had been timely filed and were not prescribed up to the time of his death. Furthermore, Mrs. Johnson received a vested property right to a survival cause of action at the time of his death. Accordingly, when Mrs. Johnson instituted a new action in 2009 to pursue her wrongful death and survival property rights as provided for by La. C.C. arts. 2315.1 and 2315.2, those right had not prescribed.

The cases cited by the defendants to support their contention that the claims have prescribed are clearly distinguishable from the facts of the instant case. In Warren v. Louisiana Medical Mutual Insurance Company, 2007-0492 (La.12/2/08), 21 So.3d 186, the Supreme Court considered the claims of a plaintiff that sought to institute a medical malpractice claim several years after the decedent’s death, even though she had never filed suit or brought a medical review panel during the decedent’s lifetime. In the instant case, Mr. and Mrs. Johnson had been named plaintiffs in all medical review panel proceedings from the outset and both timely filed suit within the period of time prescription was suspended. In Guy v. Brown, 2011-0099 (La.App. 4 Cir. 7/6/11), 67 So.3d 704; writ denied, 2011-1875 (La.11/4/11), 75 So.3d 926, which involves the same decedent as the instant case, this |1fiCourt held that a medical malpractice claim filed by the decedent’s illegitimate daughter was prescribed even though the claim was filed less than one year from the decedent’s death because the daughter had not filed or been a party to a medical malpractice claim before the decedent’s death. In that case, the daughter was a stranger to the earlier timely filed medical malpractice claim and there was nothing for her wrongful death and survival claim to relate back to. In the instant case, Mrs. Johnson was a named plaintiff in the medical review panel proceedings from the outset, and had been a party plaintiff in the lawsuits from the beginning.

In the instant case, Mrs. Johnson filed a claim for wrongful death and survival damages less than one year from the date of Mr. Johnson’s death in accordance with La. C.C. arts. 2315.1 and 2315.2. Prior to that, she complied with the legal requirements of La. R.S. 40:1299.47 and La. R.S. 9:5628. She and Mr. Johnson timely filed the medical review panel proceeding. When they were notified that the defendants were not qualified healthcare providers under the Medical Malpractice Act, the Johnsons filed a lawsuit for their damages in Civil District Court. Mrs. Johnson could have converted that lawsuit to a wrongful death and survival action, but she chose to bring another lawsuit as allowed by law. In short, procedurally speaking, Mr. and Mrs. Johnson did everything right. Furthermore, the purpose of prescription is to prevent a lawsuit from being brought against a party who may no longer expect such an action. It is a practical invention to prevent stale actions from being brought before the courts. In the instant case, Nursefinders and Ms. Ray were well aware of Mrs. Johnson’s claims against them; |17they were not caught off guard. Accordingly, Mrs. Johnson’s claims for wrongful death and survival damages have not prescribed.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed. Also, the defendants’ exception of prescription is denied.

AFFIRMED; EXCEPTION DENIED

BELSOME, J., concurs in the result.

      . 2004-2500.

      . 2009-6409.

      .The medical malpractice action filed in 2004 is still pending.


source: Caselaw Access Project

license: Public Domain

text:
    Paige Eaglin OKPALOBI v. LeBORNE II, L.L.C.
    No. 2012-CA-0804.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2012.

      Charles L. Stern, Jr., Danielle C. Ba-bashoff, Margaret V. Glass, The Steeg Law Firm, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Ryan P. Reece, Allen H. Borne & Associates, New Orleans, LA, for Defendant/Appellee, Orleans District Redevelopment Corporation, Inc.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   JAMES F. McKAY III, Judge.

pThe plaintiff, Paige E. Okpalobi, appeals the trial court’s refusal to nullify a tax sale. We affirm.

FACTS AND PROCEDURAL HISTORY

On October 28, 1987, Ifeanyi C.A. Okpa-lobi and Paige Eaglin Okpalobi purchased a piece of property located at 1241-43 Elysian Fields Avenue in New Orleans. In the act of credit sale executed at the time of the purchase, the Okpalobis declared that their mailing address was 3400 St. Claude Avenue, New Orleans, Louisiana 70117. This act was recorded in the Orleans Parish Conveyance Office at Book 817, folio 262.

The Okpalobis failed to pay to the City of New Orleans the ad valorem taxes due on the property for the years 2000, 2001 and 2002. In August of 2003, the City sent a “Notice of Delinquency and Intent to Sell at Tax Sale” via certified mail to the St. Claude Avenue address. However, the Okpalobis no longer lived at this address. They had begun divorce proceedings in 2000 and were divorced on October 23, 2001. The notice explained that unless the $4,678.68 owed in taxes |2was paid in full, the property would be sold at the November 2003 tax sale. On August 21, 2003, a person named Carol Lea signed for the letter at the St. Claude Avenue address.

The City did not receive payment and the property was sold to LeBorne II, L.L.C. on November 10, 2003. The tax sale deed was recorded on February 27, 2004. LeBorne later quitclaimed its interest in the property to Orleans District Redevelopment Corporation (ODRC). During the three-year peremptive redemption period that began on February 27, 2004, no one redeemed or attempted to pay the taxes on the property.

On May 22, 2008, Ms. Okpalobi filed suit to annul the tax sale, alleging that the tax sale was a nullity because the City failed to properly notify her of the tax sale. ODRC filed an answer and a reconventional demand seeking to quiet title to the property. Following discovery, the matter proceeded to trial on January 30, 2012. The parties stipulated to numerous facts and exhibits relative to the dispute. The only exhibit that ODRC did not stipulate to and in fact objected to was a typewritten letter that Ms. Okpalobi disclosed two days before trial. She contended that this letter constituted an attempt on her behalf to notify the City of a new address to which the tax bill should be sent. The trial court ruled the letter inadmissible, but allowed Ms. Okpalobi to proffer her testimony relative to the letter. On February 24, 2012, the trial court rendered judgment in favor of ODRC, |squieting title to the property. On March 1, 2012, the trial court amended its judgment to include a description of the property. Ms. Okpalobi now appeals.

DISCUSSION

On appeal, Ms. Okpalobi raises the following assignments of error: 1) the trial court erred in excluding from evidence a letter prepared by Ms. Okpalobi and delivered to the City of New Orleans Bureau of the Treasury, which specified the address at which Ms. Okpalobi requested all future notice regarding the property be sent; 2) the trial court erred by holding that the taxing authority is only required to send notice of a tax sale to the address of the tax debtor as reflected in the public records, with the mailing of such a notice being sufficient under all circumstances to result in a valid tax sale of the property sold; and 3) the trial court erred by finding that a certified mail letter sent to an address found on a document filed in the public records fifteen years previous will satisfy the due process requirements of the Constitutions of the United States and Louisiana and Mennonite Bd. of Missions v. Adams when the tax debtor had provided a new address to the taxing authority almost two years before the notice was mailed.

In her first assignment of error, the appellant contends that the trial court erred in excluding from evidence a letter she allegedly sent to the City of New Orleans Bureau of Treasury informing them of her change in address. A trial court’s decision excluding evidence is reviewed under the abuse of discretion standard. Cusimano v. Port Esplanade Condominium Assoc. Inc., 2010-0477 (La.App. 4 Cir. 1/12/11), 55 So.3d 931; See also La.Code of Evid. Art. 103. Therefore, a trial court’s ruling will not be disturbed unless it is clearly erroneous. Brandt v. Engle, 2000-3416 (La.6/29/01), 791 So.2d 614.

In the instant case, the appellant did not disclose the letter until the Friday afternoon before trial was to begin the following Monday. The discovery deadline had already passed and the appellant had certified on three separate occasions that all discovery was complete. Therefore, the appellee objected to the letter and the trial court did not accept it into evidence. A trial court has great discretion in deciding whether to receive evidence objected to on the grounds of failure to abide by the rules set forth in a pre-trial order or case management schedule. Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. Partnership, 2001-2812 (La.App 1 Cir. 12/30/02), 839 So.2d 82. Furthermore, the appellant offers no proof, besides her own self-serving testimony, that the letter was ever received by the City. Accordingly, we find no error or abuse of discretion in the trial court’s excluding the letter.

In her second assignment of error, the appellant contends that the trial court erred by holding that the taxing authority is only required to send notice of a tax sale to the address of the tax debtor as reflected in the public records. La. R.S. 47:2180 titled “Notice of delinquency and tax sale” mandated that notice of tax delinquency be sent to the delinquent taxpayer by certified mail, return receipt requested before immovable property can validly be sold for unpaid taxes. The public records, i.e. the mortgage and conveyance records, are the primary source for tax collectors to consult when determining the proper mailing addresses for tax sale debtors. Tietjen v. City of Shreveport, 2009-2116 (La.5/11/10), 36 So.3d 192. |fiThe taxing authority must send the notice of delinquency and intent to sell to the record owner as shown by the conveyance office records. Hines v. Dance, 460 So.2d 1152, 1154 (La.App. 3 Cir.1984) citing Recker v. Dupuy, 161 La. 392, 108 So. 782 (1926). Only if the notice is returned marked “unclaimed” or “undeliverable” must the tax collector then take additional steps, including searching for other addresses, to notify the tax sale debtor of the tax sale. Lewis v. Succession of Johnson, 2005-1192 (La.4/4/06), 925 So.2d 1172, 1178.

In the instant case, the City sent the required pre-tax sale notice to the appellant at the address listed in the public records at the conveyance office. The notice was signed for and received at that address. Once the City received the executed return receipt, the City’s procedural due process obligations to the tax sale debtor were satisfied and the City had no obligation to search further for the appellant.

In her third and final assignment of error, Ms. Okpalobi contends that the trial court erred by finding that a letter sent via certified mail to an address found on a document filed in the public records fifteen years previous will satisfy constitutional due process requirements. Courts have repeatedly held that a tax sale debtor’s actual receipt of the pre-tax sale notice is not required for a valid tax sale to occur. See Succession of Caldarera v. Zeno, 2009-1397 (La.App. 4 Cir. 7/16/10), 43 So.3d 1080, 1084 citing Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006); Thomas v. New Orleans Redevelopment Authority, 2004-1964 (La.App. 4 Cir. 10/6/06), 942 So.2d 1163, 1169 citing Dusenbery v. United States, 534 U.S. 161, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002). The crucial issue is whether the tax sale debtor is properly given notice as opposed to properly receiving the notice. Dennis v. Vanderwater, 498 So.2d 1097, 1099 (La.App. 3 CirfL986).fi In the instant case, the pre-tax sale notice was sent to the address in the public records provided by the Ok-palobis. Accordingly, Ms. Okpalobi was properly given notice that complied with constitutional due process requirements.

CONCLUSION

A tax sale is presumed valid and the party attacking the sale bears the burden of proving its invalidity. Mooring Financial Plan 401(K) Profit Sharing Plan v. Ninth Ward Housing Corp., 2009-0327 (La.App. 4 Cir. 9/16/09) 18 So.3d 797; Giordano v. MacDonald, 98-2035 (La.App. 4 Cir. 3/10/99), 729 So.2d 760. The appellant has failed to meet this burden. Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . After Mr. Okpalobi was served with the re-conventional demand, he formally declared that he had no objection to ODRC quieting title to the property.

      . 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180(1983).

      . La. R.S. 47:2180, which was in effect at the time of the tax sale in the instant case, was repealed by 2008 Acts, No. 819, § 1, effective January 1, 2009 and replaced by La. R.S. 47:2153.


text:
    STATE of Louisiana v. Kurt J. MASSEY.
    No. 2012-KA-0928.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2012.

      Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge JOY COSSICH LOBRANO).
   JAMES F. McKAY III, Judge.

| t Kurt Massey appeals his unqualified guilty plea to one count of possession of cocaine and his sentence of ten years as a second offender, requesting only a review of the record for errors patent. Finding no errors patent, we affirm his conviction and sentence.

The prosecution in this matter commenced on March 25, 2010, when the State filed a bill of information charging Kurt Massey and Quinn Massey with one count each of possession of cocaine with the intent to distribute, a violation of La. R.S. 40:967(A). The appellant entered a not guilty plea at his arraignment on April 9, 2010. On April 26, 2010 the trial court denied the appellant’s motions to suppress evidence and a statement. On June 21, 2011, pursuant to a plea agreement, the State amended the bill of information to charge a violation of La. R.S. 40:967(0, simple possession of cocaine. The appellant withdrew his prior plea of not guilty and entered a plea of guilty as charged. The court imposed a sentence of five years at hard labor. Then, again pursuant to a plea agreement with the State, the appellant entered a guilty plea to a multiple bill of information in which the State averred that the appellant was a second offender, having been |2convicted of purse snatching on July 28, 1996, in case number 875-362. The trial court vacated the five year sentence and deferred sentencing on the multiple bill until August 31, 2011. On that date, as per the plea agreement, the court sentenced the appellant to ten years at hard labor pursuant to La. R.S. 15:529.1. On March 29, 2012, the trial court granted Kurt Massey’s pro se motion for an out of time appeal and for appointment of counsel. The court appointed counsel from the Louisiana Appellate Project to represent the appellant.

Because the appellant entered an unqualified plea of guilty, there is no trial transcript in the record. The record does contain a copy of the pretrial motion hearing transcript. A review of that transcript reflects that there was a factual basis for the appellant’s guilty plea. More specifically, Officer Jason German of the New Orleans Police Department Sixth District testified that, on February 24, 2010, he received information from a reliable confidential informant that a man named “Kurt” was engaged in selling narcotics from a house on St. Thomas Street. Detective German arranged for the informant to make a controlled purchase of narcotics at the location which he had indicated was being used by “Kurt.” Detective German then obtained a search warrant for the location, and in the process of doing so, he learned that a man, later identified as the appellant, Kurt Massey, lived at the targeted location. Also, Detective German learned that Kurt Massey drove a white Expedition. On the day that the warrant was to be executed, Detective German located the Expedition and conducted a stop of Kurt Massey. During the stop, the detective discovered a plastic bag containing cocaine in the | ¡¡vehicle. In the search of the residence pursuant to the warrant, officers found currency and paraphernalia consistent with drug trafficking, in particular cocaine.

By his sole assignment of error, Kurt Massey requests a review of the record for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel moved to withdraw because he believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed the record and found no trial court ruling that arguably supports the appeal. A copy of counsel’s brief was forwarded to Kurt Massey, and this Court informed him that he had the right to file a brief on his own behalf. He has not done so. Thus, this Court’s review is limited to errors on the face of the record. La.C.Cr.P. art. 920.

As per State v. Benjamin, this Court performed an independent, thorough review of the pleadings, minute entries, and the bill of information in the appeal record. Kurt Massey was properly charged by bill of information with possession of cocaine in violation of La. R.S. 40:967; the bill of information was signed by an assistant district attorney. Kurt Massey was present and represented by counsel at arraignment, at the motion hearing, when he entered his guilty plea, and at sentencing. A review of the guilty plea transcript reflects that Kurt Massey was advised fully of his constitutional rights and that he knowingly and voluntarily [4waived those rights. The sentence imposed on the appellant as a second offender is legal in all respects.

Accordingly, because this Court’s review reveals no patent error and no non-frivolous issue or trial court ruling that requires reversal of the appellant’s conviction or sentence, we affirm Kurt Massey’s conviction and sentence. We also grant appellate counsel’s motion to withdraw.

AFFIRMED

      . Quinn Massey subsequently entered a guilty plea to an amended charge; he did not appeal the guilty plea and sentence.

      . See State v. Crosby, 338 So.2d 584 (La.1976), in which the court established that a defendant could expressly preserve for review on appeal an adverse pretrial ruling by entering a qualified plea of guilty. Here, the appellant did not enter a Crosby plea.


author: CHARLES R. JONES, Chief Judge.

text:
    JOHN PAUL SAPIR, LLC v. YUM! BRANDS, INC., Phil Stein, and 2645 Tulane, LLC.
    No. 2012-CA-0824.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2012.

      Soren E. Gisleson, Carl A. “Trey” Woods, Herman Herman Katz & Cotlar, New Orleans, LA, for Plaintiff/Appellant.

      Patricia B. McMurray, William D. Shea, Adams and Reese, Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., and Judge ROSEMARY LEDET).
   CHARLES R. JONES, Chief Judge.

|¶ The Appellant, John Paul Sapir, LLC, seeks review of the judgment of the district court granting the motion for summary judgment filed by the Appellee, Taco Bell America, Inc. Finding that the district court did not err in granting the motion for summary judgment, we affirm the judgment of the district court.

On January 22, 1991, the predecessor of John Paul Sapir, LLC, Eddie L. Sapir Inter Vivos Trust # 1 (“Trust”), and Taco Bell entered into a Ground Lease Agreement (“the Lease”) in which Judge Eddie Sapir (“Judge Sapir”) negotiated and executed the Lease agreement at issue. The Lease granted Taco Bell the right to use a piece of land near the corner of Tulane Avenue and Broad Street (“the Sapir Property”) in New Orleans. The right of use was specifically for the “ease of traffic flow and additional parking for the convenience of “Tenant’s” customers patronizing Taco Bell Restaurant #2337, located at 2639 Tulane Avenue, New Orleans, Louisiana.” Judge Sapir, acting as the manager of the Sapir Property, negotiated the Lease agreement for the Trust before the entity John Paul Sapir, LLC, was created.

Taco Bell previously operated a Taco Bell restaurant adjacent to the Sapir Property. Subsequent to the Lease agreement between the parties, Taco Bell | ¡.utilized the Sapir Property for additional parking for restaurant customers, and for more efficient traffic flow to and from the restaurant. It is important to note that no part of the actual Taco Bell restaurant was located on the Sapir Property; rather, the Sapir Property consisted of part of a driveway and parking spaces that allowed egress from the restaurant to Broad Street.

In August 2005, as a result of Hurricane Katrina, Taco Bell’s restaurant was severely damaged. For business reasons, Taco Bell elected not to reopen its restaurant, and on November 22, 2005, notified the Trust of its intention to terminate the Lease agreement for the Sapir Property. Shortly thereafter, the Trust filed suit (the “Sapir Trust Suit”) against Taco Bell seeking to enforce the Lease, and continue to have Taco Bell make rental payments according to the Lease. During the pen-dency of the Sapir Trust Suit, the Sapir Property was transferred from the Trust to the Appellant, John Paul Sapir, LLC. On or about October 29, 2008, the claims of the Sapir Trust Suit were settled. As part of the settlement, Taco Bell agreed to make all past due rental payments current, and also that the Lease agreement would remain valid and in effect. The Appellant asserts that it was its understanding that after this settlement, Taco Bell would make efforts to reopen a Taco Bell restaurant pursuant to the Lease. In March 2009, Taco Bell assigned its rights to the Lease to 2645 Tulane, LLC. (“Tulane”) for $1. Tulane has never reopened a Taco Bell restaurant adjacent to the Sapir Property, and Tulane is currently using the Sapir Property as a parking lot.

|3On August 21, 2009, the Appellant filed its Petition for Breach of Contract against Taco Bell, Phil Stein, and Tulane. The Appellant thereafter filed an Amended Petition for Breach of Contract against Taco Bell and Tulane. The Petition stated that all defendants were in breach of the Lease for reasons which include, but are not limited to, failure to operate a Taco Bell restaurant on the Sapir Property subject to the Lease, even after the Sapir Property was assigned to John Paul Sapir, LLC. The dispute centered upon whether the Lease agreement between the Appellant and Taco Bell required the operation of a Taco Bell restaurant and only a Taco Bell restaurant on the Sapir Property. The Lease does not contain any specific provision that authorizes the operation of a certain type of business at that location.

Pursuant to the Appellant’s suit, Taco Bell filed a Motion for Summary Judgment arguing that neither Taco Bell nor its as-signee were in breach of the Lease. After hearing and weighing the testimony and evidence presented pertaining to Taco Bell’s Motion for Summary Judgment, the district court found that the Appellant failed to present evidence that genuine issues of material facts exist. The district court reasoned that it did not find any provisions in the contract between the parties to support the Appellant’s argument that Taco Bell breached the Lease agreement. The district court stated specifically “there’s nothing in there [Lease] in my mind [that] requires there to be a Taco Bell there.” Thus, the district court granted the Motion for Summary Judgment, dismissed all claims against Taco Bell with prejudice, and continued the trial without a date.

This timely appeal follows, and the Appellant raises two (2) assignments of error on appeal:

|41. The district court erred by granting Taco Bell’s Motion for Summary Judgment when the only testimony concerning the intent of the parties in confecting the Lease stated that only a Taco Bell restaurant was contemplated; and
2. The district court erred by granting Taco Bell’s Motion for Summary Judgment when the clear terms of the Lease limit the use of the Sapir Property for the operation of a Taco Bell restaurant.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726, p. 3 (La.2/26/08), 977 So.2d 880, 882. Appellate courts review a grant of summary judgment de novo using the same criteria applied by the lower court to determine if summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). Summary judgment shall be grant ed “if the pleadings, depositions, answer to interrogatories and admissions on file, together with the affidavit, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). This article provides that “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). La. C.C.P. art. 966(C)(2) sets forth the burden of proof in summary judgment proceedings, providing:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse | ¿party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he ■will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Schultz v. Guoth, 2010-0343, p. 6 (La.1/19/11), 57 So.3d 1002, 1006. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Id. at pp. 6-7, 57 So.3d at 1006 (quoting Wright v. Louisiana Power & Light, 2006-1181, p. 16 (La.3/9/07), 951 So.2d 1058,1069-70).

The Appellant, at trial, argued that this matter is about a factual dispute concerning the intent behind the terms of the Lease agreement. The Appellant argued that its intent during the execution of the contract was for Taco Bell to use the Sapir Property exclusively as additional parking lot for Taco Bell’s patrons; therefore, Taco Bell breached the terms of the Lease agreement when it transferred all of its interest in the Sapir Property to Tulane. They further argue that though Tulane is operating a parking lot on the premises, and has paid on time the monthly rental payments to the Appellant, Taco Bell still breached the Lease agreement because the operations of Tulane are not in accordance with the Appellant’s intent.

|fiThe Appellant argued that its representative, Judge Sapir, an elected official at the time of the execution of the Lease agreement, negotiated the terms of the contract, and the specific use of the Sapir Property as an additional parking lot to be operated by Taco Bell only. They argue that the Trust’s intent was not for Taco Bell or any assignee of Taco Bell to use the Sapir Property to operate any other form of business; thus, Judge Sapir restricted the use of the Sapir Property to a Taco Bell restaurant so it could not be used for some type of business he did not agree with or he would potentially have conflicts with in the future.

In support of its argument, the Appellant cited several portions of the Lease agreement which refers to Taco Bell’s use of the Sapir Property for additional parking space for its patrons. The Appellant argued that these specific references in the Lease agreement stating specifically the use of the Sapir Property and Taco Bell’s use of the Sapir Property, showed its intent behind the Lease agreement; therefore, Taco Bell was in breach of the Lease agreement by selling its rights and obligations in the Sapir Property to Tulane.

Taco Bell, in its motion for summary judgment, contended that no genuine issue of material fact existed, and as such, a motion for summary judgment was warranted. Specifically, it claimed that the Lease agreement held between the parties did not provide any direct provisions requiring Taco Bell to operate a restaurant on the land adjacent to the Sapir Property at issue. They argue that this was important because Taco Bell has not reopened its restaurant at the said location since 2005. Further, the Lease agreement allowed Taco Bell to reassign its rights and obligations under the Lease agreement, so long as the monthly rental payments were paid accordingly. The Lease agreement stated in pertinent part:

^Section 14 — USE OF DEMISED PREMISES — Tenant may use the Real Property for the purpose of constructing a parking lot and for providing customers with a more convenient and efficient traffic flow for the benefit of Tenant’s Taco Bell Restaurant, noted herein. Tenant shall not use the Real Property in such as manner [sic] as to violate any applicable law, rule, ordinance or regulation of any governmental body (or any covenant of record as of the Effective Date of this Lease that runs with the Real Property). Landlord represents and warrants that use of the Real Property for parking and traffic flow associated with Tenant’s Taco Bell restaurant is not prohibited or limited by zoning or other restrictions. In the event use of the Real Property is hereafter prohibited or restricted by any law, ordinance or order of any governmental authority (or any covenant of record that runs with the Real Property), Tenant shall have the right to terminate this Lease by giving Landlord thirty (30) days notice in writing, which if so chosen shall serve to forever fully release Tenant from any and all obligations thereafter arising out of or under this lease.

Taco Bell contended that due to the lack of restrictions in the Lease agreement which was negotiated by the trust representative, a then presiding judge, both at the creation of the contract in 1991, and during the Sapir Trust Suit in 2006, the Appellant is barred from now presenting an argument alleging its intentions regarding the language of the Lease agreement.

At the hearing, the district court found that there was no breach of the Lease agreement by Taco Bell, as the Lease agreement fails to require Taco Bell to have an operating Taco Bell restaurant and in-turn utilize the Property as a parking lot. The district court found that the Lease agreement, which is unambiguous, did not provide any restrictions onto whom Taco Bell could assign its rights. Finally, the district court found that the Appellant’s arguments regarding Judge Sapir’s intent at the execution of the Lease agreement was meritless as the evidence presented failed to support the arguments. The district court stated specifically “too bad he 18didn’t put it in the contract.” The district court granted Taco Bell’s motion for summary judgment, dismissing the Appellant’s claims against Taco Bell.

On appeal, the Appellant argues that summary judgment was inappropriate in this matter as material issue of facts exist as to the intent of the parties regarding the Lease agreement. The Appellant, in support of its argument, cites Carter v. BRMAP, wherein the First Circuit opined that “[a]s a general rule, a motion for summary judgment ‘[i]s rarely appropriate for a determination based on subjective facts such as intent, motive, malice, knowledge or good faith.’ ” 591 So.2d 1184,1189 (La.App. 1st Cir.1991), (citing Penalber v. Blount, 550 So.2d 577, 583 (La.1989)). “Thus, in motions for summary judgment where a contract is ambiguous and the intent of the parties becomes a question of fact, very often there are conflicting affidavits concerning the intent of the parties and granting a summary judgment is not appropriate.” Id. The Appellant argues that it provided the deposition of Judge Sapir in which he states numerous times that his intent at the time of negotiating and executing the Lease agreement was for Taco Bell to always have an operating Taco Bell restaurant and parking lot on the Sapir Property, and that if and when Taco Bell could not fulfill this obligation, to terminate the Lease agreement held between the parties.

La. C.C. art. 2045 provides that the interpretation of a contract is the determination of the common intent of the parties with courts giving the contractual words their generally prevailing meaning unless the words have acquired a technical meaning. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the intent of .the parties. La. C.C. art. 2046. Further, “the meaning and intent of the parties to a written instrument should be determined within the four |3corners of the document and its terms should not be explained or contradicted by extrinsic evidence.” Corbello v. Iowa Prod., 2002-0826, p. 6 (La.2/25/08), 850 So.2d 686, 694. Parol or extrinsic evidence is generally inadmissible to vary the terms of a written contract unless the written expression of the common intention of the parties is ambiguous. La. C.C. art. 1848; Ortego v. State, Through the Dep’t of Trans. & Develop., 1996-1322 (La.2/25/97), 689 So.2d 1358, 1364. A contract is considered ambiguous on the issue of intent when it lacks a provision bearing on that issue, the terms of a written contract are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed. La. C.C. art. 1848. Furthermore, the Louisiana Supreme Court has previously held that the rules of contract construction do not authorize a perversion, of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of new contract when the terms express with sufficient clearness the parties’ intent. Campbell v. Melton, 2001-2578, p. 9 (La.5/14/02), 817 So.2d 69, 76. Additionally, the fact that one party may create a dispute about the meaning of a contractual provision does not render the provision ambiguous. Id. The Louisiana Supreme Court has also repeatedly explained that it is not within the province of courts to relieve parties of what they later decide is a “bad bargain.” Thus, if the contract agreement is not ambiguous, the party arguing ambiguity is still bound by its terms, even if it no longer likes the terms. Maloney v. Oak Builders, Inc., 256 La. 85, 97, 235 So.2d 386, 390 (1970).

It is undisputed that there was a Lease agreement held between the parties, Taco Bell and John Paul Sapir, LLC, giving Taco Bell the use of the Property as a parking lot for its patrons, dating back to 1991. It is also undisputed that since 11()Hurricane Katrina in August 2005, Taco Bell has not operated another restaurant at the said location and has not utilized the Sapir Property as a parking lot. It is further undisputed that Taco Bell has paid all the monthly rental payments from 1991 until 2009. Lastly, it is undisputed that pursuant to the terms of the Lease agreement giving Taco Bell the right to assign its interests in the Sapir Property to another company, so long as the rental payments are made timely, Taco Bell assigned the Sapir Property to Tulane to operate a parking lot.

In the matter sub judice, a review of the facts and pertinent law reveals that the evidence within the record overwhelmingly supports the district court’s ruling that Taco Bell did not breach the Lease agreement, and further that Judge Sapir, on behalf of the Trust, now the Appellant, should have included these restrictions and specifications in the Lease agreement since he asserts he went to great lengths negotiating them in 1991. The Appellant cannot prevail on its argument in that it failed to present evidence and proof that the Lease agreement, executed and in ef-feet since 1991, is ambiguous and thus further interpretation was needed. The record reveals that the language of the Lease agreement is clear and explicit. By looking at the four corners of the Lease agreement, it can be concluded that the intent of the Appellant was to allow Taco Bell the use of the Sapir Property, as well as the ability to assign their rights to whichever entity it saw fit, so long as the new assignee did not operate a business contrary to law. The Appellant cannot argue that Judge Sapir meant to include a restriction that a Taco Bell restaurant must always be in operation at the location because as the record reveals, Taco Bell has not reopened its restaurant at the said location since 2005.

Further, the Appellant argues that its intent during the execution of the Lease agreement was to prevent any sort of business operations on the Sapir Property. In However, it failed to provide reasons and evidence as to why it gave Taco Bell the right to reassign its rights to the Sapir Property to a different entity. Furthermore, the Appellant failed to present reasons why Tulane’s operation of the parking lot violates any applicable law, rules or city ordinance. The Appellant’s argument that the Lease agreement is ambiguous by merely warranting a dispute about the intent behind the execution of the Lease agreement is meritless. John Paul Sapir, LLC, merely because it does not support the current operations which the Sapir Property is being used for, cannot rescind the Lease agreement. In short, the Appellant is still bound by the terms of the Lease agreement, even though Judge Sa-pir and the Appellant no longer like the terms of the agreement.

DECREE

Considering our findings that no genuine issue of material facts exist as to the interpretations and the intent behind the execution of the Lease agreement, John Paul Sapir, LLC, cannot prevail on its argument that the Lease agreement is ambiguous based on the conflicting intent of the parties. Thus, we affirm the judgment of the district court granting the Motion for Summary Judgment filed by YUM! BRANDS, INC.

AFFIRMED

      . Phil Stein owned the Taco Bell Property at the time of the instant suit.


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

text:
    FIRST BANK & TRUST v. Todd J. TEDESCO, et al.
    No. 2012-CA-0774.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2012.

      Emile A. Bagneris, III, Helen H. Babin, Ungarino & Eckert, LLC, Metairie, LA, for Plaintiff/Appellant.
    Michael G. Gaffney, Hurndon & Gaffney, Nolan P. Lambert, Attorney at Law, Charles V. Cusimano, III, Cusimano Law Firm, PLC, New Orleans, LA, Robert An-gelle, Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET).
   MAX N. TOBIAS, JR., Judge.

|,First Bank & Trust (“FBT”), the plain-tiffiappellant, filed the instant appeal after obtaining a deficiency judgment against the defendants/appellees/eross-appellants, Todd J. Tedesco (“Tedesco”) and Todd Tedesco Investments, L.L.C. (“TTI”). After reviewing the record and applicable law, we affirm in part, amend in part, and render judgment as amended.

In July 2005, TTI entered into a multiple indebtedness mortgage on immovable property located at 7515 St. Charles Avenue, New Orleans, Louisiana. The mortgage was used as security for a promissory note dated 26 March 2009. When the defendants defaulted on the obligation, FBT accelerated the balance owed on the promissory note and demanded payment. When payment was not forthcoming, FBT filed a petition for executory process in the parish of New Orleans; the collateral was seized and sold with benefit of appraisal on 18 June 2010 for $696,666.67 at a sheriffs sale pursuant to a writ of seizure and sale. Right and title on the property was transferred to FBT on 22 July 2010, for they bid in the property at the sheriffs sale.

|⅞(⅛ 12 August 2010, FBT filed a petition for deficiency judgment against Ted-esco and TTI for the deficiency balance on a promissory note dated 26 March 2009, in the principal amount $1,677,909.35, loan number 100205787, secured by that multiple indebtedness mortgage. The loan was made pursuant to a business loan agreement, also dated 26 March 2009, which names Tedesco as the guarantor on the loan.

FBT calculated its deficiency judgment against the defendants: (a) the principal amount of $1,609,474.90; (b) interest in the amount of $160,219.63 through 17 June 2010, together with interest at a default rate of 21% per annum from 18 June 2010, until paid; (c) late fees in the amount of $2,000.00; (d) 25% of principal and interest as attorneys’ fees; (e) $64,980.00 in property taxes; (f) $20,558.25 in sheriffs costs; and (g) all other costs of the proceedings, all subject to a credit of $696,666.67.

Sal Runco (“Runco”), recovery specialist for FBT with 34 years’ experience in the banking industry, calculated the deficiency due as of the date of trial, 12 January 2012, to be $1,258,606.65. Interest was calculated on the promissory note at the rate of 8% per annum. Included in the deficiency amount were the sheriffs costs and commissions of $28,088.85, and attorney’s fees of $33,172.00. Runco explained that the 26 March 2009 note, loan number 100205787, was a repackaging and renewal of three previous TTI loans, numbers 100149284, 100134780, and 100200702; no new money was loaned by FBT to TTI.

| ¡¡Runco testified that Tedesco executed a commercial guaranty for personal liability to FBT on 25 June 2008. He testified that the boxes at the top of the commercial guaranty referencing loan, date, loan number, and amounts were blank because it was a blanket guaranty; it was not tied to a specific note. The terms of the continuing guaranty provide that Tedesco was personally liable for any and all amounts borrowed by TTI in the present or in the future regardless of the amount. Runco reiterated that the guaranty applied to all present and future loans from FBT to TTI.

Runco was directed to page 2 of the guaranty where a reference is made to loan number 100200702, one of the three loans repackaged and refinanced in the 26 March 2009 loan. He testified that the loan number on the second page of the guaranty is a reference to the fact that the guaranty was created at the same time as loan number 100200702. Runco further explained that to recover under the guaranty, he looks to the four corners of the document to determine if: (1) it is continuing and there is no expiration date; (2) the guaranty amount is unlimited; (3) it applies to present and any future debt incurred; and (4) at the top of the guaranty there is the language that “the boxes above are for lender’s use only and do not limit the applicability of this document to any particular loan or item.”

Desiree Harrison (“Harrison”), Vice President of FBT, testified regarding her personal knowledge in closing the loan of 26 March 2009 with Tedesco and TTI. She handles workouts and restructures on the larger commercial loans. In this case, she had been unable to locate the commercial guaranty but remembered |/Tedesco signing it on 26 March 2009. She stated that it was her practice to have a new continuing guaranty signed with each new loan, although most of the other FBT officers did not do the same. Harrison testified that the bank had four or five unlimited continuing guaranties previously signed by Tedesco. She further stated that the 25 June 2008 guaranty meant that Tedes-co, as guarantor, had an unlimited continuing guaranty liability for any loan made in the future to TTI, including the 26 March 2009 loan, without the execution of any additional continuing guaranty.

Harrison stated that the loan number reference on the second page of the continuing guaranty is 100200702. She identified that loan number as one that was consolidated into the 26 March 2009 loan; the amount from that loan was $265,760.85.

Under cross examination, Harrison testified that she remembered Tedesco signing a new continuing guaranty when he executed the documents for loan number 100205787. However, that guaranty could not be found at the bank.

Tedesco and TTI assert that TTI had business loans with FBT, one of which was executed on 25 June 2008, for the loan bearing number 100200702, in the original principal amount of $540,000.00. In conjunction with that June 2008 loan, Tedesco signed a continuing guaranty on the same date bearing the same loan number.

When the housing business took a downturn, Tedesco requested his father’s (Terry Tedesco’s) financial assistance. Terry Tedesco negotiated with FBT 15whereby he agreed to pay down part of the debt and, in exchange, FBT would assign to Terry Tedesco Home Builders, LLC (“TTHB”) the 25 June 2008 note together with the collateral, immovable property on Arabella Street in New Orleans, that secured this note and, as asserted by Tedesco and TTI, the 25 June 2008 guaranty.

Consequently, on 26 March 2009, TTI entered into a subsequent “business loan agreement” and signed the promissory note with FBT for the amount of $1,607,909.35, that was secured by immovable property located at 7515 St. Charles Avenue. No new guaranty was signed for this new loan.

On 30 April 2009, FBT executed a “notarial act of transfer, endorsement, assignment, and subrogation of note and related collateral,” wherein the 25 June 2008 note and the collateral securing the note were assigned to TTHB for the sum of $266,563.93. As a result, TTHB received the 25 June 2008 note itself, and the collateral property located on Arabella Street was released.

When TTI defaulted on the 26 March 2009 loan, foreclosure proceedings by means of an executory process were instituted by FBT in Orleans Parish. The immovable property securing that promissory note, 7515 St. Charles Avenue, was seized and sold for $696,666.67 at an 18 June 2010 sheriffs sale. However, according to Tedesco and TTI, the appraisal was (1) not under oath; (2) not signed; and (3) was a “drive-by appraisal,” all in violation of the Louisiana Deficiency Judgment Act.

IfiOn 12 August 2010, FBT filed a petition for deficiency judgment against the defendants based on the 26 March 2009 note executed by Tedesco, as manager of TTI. Nothing in the petition referenced any guaranty or other obligation binding Tedesco personally. In fact, no guaranty was produced until a few days before trial.

The trial court found it undisputed that Tedesco signed a personal continuing guaranty on 28 June 2008. The guaranty references loan number 100200702; this loan was one of three loans subsequently consolidated and refinanced into the package loan for $1,607,909.35 on 26 March 2009. The trial court found that the 28 June 2008 guaranty specifically states that it covers both current and future indebtedness.

The court cited the testimony of Harrison that she remembered Tedesco signing a personal guaranty on 26 March 2009. However, that guaranty was not produced. The trial court held that the parties intended that the 28 June 2008 continuing guaranty would relate only to loan number 100200702. Thus, the court found Tedesco personally liable only for that portion of the debt remaining due on loan number 100200702 when it was refinanced on 26 March 2009.

The trial court rendered judgment in favor of FBT and against Tedesco personally for $265,760.85 principal, together with $3,686.21 in sheriff’s costs, attorney’s fees of $33,172.00, and interest at a rate of 8% per annum totaling $21,260.86. Further, the court rendered judgment against TTI in the amount of |7$915,374.00; the remaining sheriffs costs of $19,352.64 were assessed against FBT.

FBT appealed the judgment of the trial court, arguing that the court should have found Tedesco personally liable for the entire amount of the debt of TTI. Tedes-co and TTI filed a cross appeal, arguing that Tedesco was not personally liable for any part of the debt.

FBT has assigned two errors for review. First, it contends that the trial court erred in failing to find that Tedesco’s June 2008 guaranty was a continuing guaranty applicable to all future indebtedness on the part of TTI, including the subsequent March 2009 loan. Second, it argues that the trial court abused its discretion in assessing costs against it, the prevailing party. Because we are interpreting a contract between the parties, we begin our analysis with the language of the guaranty.

The June 2008 continuing guaranty signed by Tedesco states in pertinent part:

CONTINUING GUARANTY. THIS IS A “CONTINUING GUARANTY” UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO. LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE BORROWER’S INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR’S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS J^MAY BE A ZERO BALANCE FROM TIME TO TIME TO THE EXTENT THAT GUARANTOR IS OR MIGHT BECOME A MEMBER/OWNER OF BORROWER, GUARANTOR AGREES THAT, NOTWITHSTANDING THE PROVISIONS OF LA. R.S. 12:1320. GUARANTOR SHALL BE LIABLE UNDER THIS GUARANTY FOR THE BORROWER’S INDEBTEDNESS. [Emphasis supplied.]

The guaranty also provides that its obligations remain in full force and effect until such time as a written cancellation instrument in favor of guarantor is executed.

The guaranty further provides:

ADDITIONAL GUARANTIES. Guarantor recognizes and agrees that Guarantor may have previously granted, and may in the future grant one or more additional guaranties of Borrower’s Indebtedness and obligations in favor of lender. Should this occur, the execution of this Guaranty and any additional guarantees on Guarantor’s part will not be construed as a cancellation of this Guaranty or any of Guarantor’s additional guaranties; it being Guarantor’s full intent and agreement that all of Guarantor’s guarantees of Borrower’s Indebtedness and obligations in favor of lender, shall remain in full force and shall be cumulative in nature and effect. [Emphasis supplied.]

A contract of guaranty is equivalent to a contract of suretyship and the two terms may be used interchangeably. Bank of Coushatta v. Patrick, 503 So.2d 1061, 1068 (La.App. 2nd Cir.1987): Commercial National Bank v. Rowe, 27,800, p. 10 (La.App. 2 Cir. 1/24/96), 666 So.2d 1312, 1318. Therefore, the provisions of the civil code governing the contract of suretyship may be examined in testing whether a continuing guaranty exists. Ball Marketing Enterprise v. Rainbow Tomato Co., 340 So.2d 700, 701 (La.App. 3rd Cir.1976). In Regions Bank v. Louisiana Pipe & Steel Fabricators, LLC, 11-0839, p. 4 (La.App. 1 Cir. 12/21/11), 80 So.3d 1209, 1212-13, the First Circuit stated:

^Suretyship is established upon receipt by the creditor of the writing evidencing the surety’s obligation. The creditor’s acceptance is presumed, and no notice of acceptance is required. LSA-C.C. art. 3039. An agreement to become a surety must be expressed clearly and must be construed within the limits intended by the parties to the agreement. Placid Refining Co. v. Privette, 523 So.2d 865, 867 (La.App. 1st Cir.), writ denied, 524 So.2d 748 (La.1988). Contracts of guaranty or suretyship are subject to the same rules of interpretation as contracts in general. Ferrell v. South Central Bell Telephone Co., 403 So.2d 698, 700 (La.1981).

Based on the language in the guaranty and the jurisprudence, FBT contends that the 25 June 2008 guaranty remained in full force and effect and applied to the March 2009 loan. Thus, they contend that FBT could obtain a deficiency judgment against Tedesco for the full amount of the debt, contrary to the judgment of the trial court.

Contrariwise, Tedesco and TTI contend that, despite the guaranty’s language quoted above, the refinanced portion of the 25 June 2008 note and the guaranty of that same date were transferred to TTHB pursuant to the notarial act of transfer dated 30 April 2009. Further, they contend that because no new personal guaranty was signed by Tedesco, the deficiency judgment arising from the 26 March 2009 note is the responsibility of TTI alone.

It is undisputed that FBT sold the 25 June 2008 promissory note in the original principal amount of $540,000.00 to TTHB on 30 April 2009. Also transferred to TTHB were the “assigned collateral documents,” which are defined in the act of transfer as the note and the act of multiple indebtedness mortgage dated 20 January 2005 by TTI in favor of FBT. No mention of the continuing guaranty is made in the act of transfer. The proceeds received by FBT for the note and mortgage were used to bring loan number 100200702 current; the act of |intransfer did not extinguish the entire debt on the note sold to TTHB. The remainder owed on that loan was restructured into a new business loan agreement by TTI that consolidated and refinanced loan numbers 100149284, 100137480, and 100200702. This resulted in loan number 100205787 for the principal amount of $1,607,909.35 made on 26 March 2009 and due on or about 26 March 2010.

Perhaps it was the intent of Tedesco and his father that the June 2008 continuing guaranty be transferred to TTHB in the notarial act of transfer. However, Tedes-co was not present at the trial and presented no witnesses at trial on his behalf. Therefore, we are bound by the four corners of the documents admitted into evidence at trial. We find that the June 2008 continuing guaranty remained the property of FBT.

Finding that the 2008 guaranty remained in the possession of FBT, the trial court held that the June 2008 continuing guaranty applied only to the remainder of loan number 100200702, together with interest, attorney’s fees, and sheriff’s costs. It reasoned as follows:
The balance of this loan [number 100200702] was included in a promissory note signed by Todd Tedesco Investments, L.L.C. on March 26, 2009. The purchase by Terry Tedesco in the act of transfer did not extinguish the entire debt owed by Todd Tedesco Investments, L.L.C., under loan number 10020070 [sic]. The question is whether Mr. Tedesco personally guaranteed the entire loan or just the balance of loan 10020070 [sic].
It is undisputed that Mr. Tedesco signed a personal guarantee on June 28, 2008. The guarantee references loan number 10020070 [sic]. It does specifically state that it covers both current and future indebtedness. Ms. Desiree Harrison, a vice-president at FBT, testified that she personally handled Mr. Tedesco’s loans. Under cross-examination, Ms. Harrison stated without question that she remembers Mr. Tedesco signing a personal guarantee on March 26, 2009. However, this promissory note [sic] was not produced. Ms. Harrison further indicated that the bank would not have back-dated the Inguarantee to June 28, 2008. She later offered that the June 28, 2008, guarantee would be applicable to the March 26, 2009 refinanced loan. Based upon the credibility of the witnesses and the documentary evidence, this court finds that the parties intended that the personal guarantee [sic] dated June 28, 2008, would be solely related to loan number 10020070 [sic]. The court also finds that FBT failed, through its own oversight, to have Mr. Tedesco sign a personal guarantee for the March 26, 2009 refinancing. Ms. Harrison did not assert that Mr. Tedes-co signed the note [sic], and it was lost. FBT did not produce a guarantee because no such guarantee [sic] existed.

We find that the trial court erred in its findings on this issue. Harrison stated that, to the best of her knowledge, she saw Tedesco sign a new continuing guaranty for the 26 March 2009 refinancing. She also testified that she has customers sign new guaranties whenever a new loan is made, but many of the officers at FBT do not. In any event, she testified, as did Runco, that the guaranty dated 28 June 2008 was sufficient to hold Tedes-co personally liable for the full amount of the debt owned by TTI. This evidence was uncontroverted being the only testimony presented at trial on this issue.

We are also guided by the March 2009 business loan agreement between TTI and FBT. Under “Guaranties,” the document states:

Prior to disbursement of any Loan proceeds, [the borrower] furnish executed guaranties of the Loans in favor of Lender, executed by the guarantor named below, on Lender’s forms, and in the amount and under the conditions set forth in those guaranties.

The agreement does not state that a new guaranty for this particular loan be executed, only that one or more guaranties must be executed by the guarantor in |12favor of FBT before any loan proceeds are disbursed. Based on the jurisprudence and the wording of the relevant documents, we find that the June 2008 guaranty was applicable to this loan (any other future loans) from FBT to TTI. It thusly was applicable to the 26 March 2009 refinancing.

Before addressing the issue of costs raised by FBT, we turn to the remaining assignments of error asserted by Tedesco and TTI.

Tedesco and TTI argue that FBT did not comply with the Louisiana Deficiency Judgment Act: they failed to plead and prove the existence of Tedesco’s personal liability. Related to this is their next assignment of error: that the trial court erred by admitting into the evidence the June 2008 guaranty that was not previously produced by FBT. Without the guaranty, they assert, no proof of Tedesco’s personal liability exists.

In First Guaranty Bank, Hammond, Louisiana v. Baton Rouge Petroleum Center, Inc., 529 So.2d 834, 842 (La.1987), the Louisiana Supreme Court, on rehearing, set forth the requirements for deficiency judgment, as follows:

To obtain a deficiency judgment, the creditor first must affirmatively plead and prove the existence of the obligation giving rise to the debt, La.C.C. art. 1831, and the grounds of non-performance entitling him to maintain his judicial action. La.C.C. art. 1994. Further, he must aver and establish by evidence that the property was sold under the execu-tory proceeding after appraisal in accordance with the provisions of article 2723 of the Code of Civil Procedure; Gordon Finance Co. v. Chambliss, 236 So.2d 533 (La.App. 2d Cir.1970), writ denied, 256 La. 869, 239 So.2d 364 (1970); Pickering v. Kinney, 205 So.2d 199 (La.App. 2d Cir.1968); and that the proceeds received were insufficient to satisfy the balance of the performance then due. La.C.Civ.P. art. 2771; La.R.S. 13:4106; 4107. The appraisal procedures of article 2723 require that prior to the sale, the property seized must be appraised in accordance with law, and the order directing the issuance of the writ of seizure and sale must have directed that the property be sold as prayed |1sfor. Other statutory law sets forth the procedures for written notices to the debtor and seizing creditor, the appointment of appraisers, the sheriff’s appointment of an appraiser if a party neglects to do so, delivery of appraisals, oaths of appraisers, and the form of the appraisals. La. R.S. 13:4363-4365.
The debtor, on the other hand, may assert both negative and affirmative defenses against the deficiency judgment action. He may defend by demonstrating the creditor’s failure to prove one of the aforementioned elements of his case or by rebutting the existence of such an element. Additionally, the debtor may assert that an obligation is null, or that it has been modified or extinguished, but in such a case the debtor must prove the facts or acts giving rise to the nullity, modification, or extinction. La.C.C. art. 1831; La.C.Civ.P. art. 1005.

On these issues, the trial court stated:

Tedesco maintains that the first time this personal guarantee [sic] was produced by FBT was a few days prior to trial. Up to that point, Tedesco had not been provided with any evidence of his personal indebtedness. While Tedesco did identify the personal guarantee [sic] as an exhibit, he never offered it into evidence. Tedesco, who was not subpoenaed for trial by FBT, objected to the introduction of the personal guarantee [sic] as hearsay. FBT orally moved for a continuance of the trial because it had not anticipated that Mr. Tedesco would not be present to authenticate his signature. The court found that this expectation was reasonable as Mr. Ted-esco filed a reconventional demand which he would have to prove through his testimony. FBT in return objected to a “Notarial Act of Transfer, Endorsement, Assignment and Subrogation of Note and Related Collateral” dated April 30, 2009, arguing that it had not been produced timely. However, this court found that since FBT had recently produced the personal guarantee [sic], it was reasonable for Tedesco to obtain any documents he deemed were relevant to defend against this late filed document. This court found that both documents were reliable and both were admitted. All other objections were reserved. The court finds that Mr. Ted-esco did not judicially confess the validity of the personal guarantee [sic] or that he personally guaranteed the entire indebtedness sought by FBT in this case.

| uThe admission of evidence is within the discretion of the trial court. Munch v. Backer, 10-1544, p. 3 (La.App. 4 Cir. 3/23/11), 63 So.3d 181, 185. We find that the trial court acted fairly and reasonably by admitting all the evidence produced by the parties after the discovery deadline. Once the guaranty was admitted, FBT proved the existence of an obligation giving rise to the debt. This assignment of error is without merit.

Finally, Tedesco and TTI have attacked the appraisal process, arguing that the Orleans Sheriff did not comply with the statutory appraisal requirements. Specifically, they contend that the appraisal by FBT was fatally defective for the following reasons: (1) the appraiser did not take an oath to make a true and just appraisal; (2) the appraiser did not sign the appraisal; (3) the appraiser did not sign the sheriffs form; and (4) the appraiser did a “drive-by” appraisal and did not inspect the inside of the property.

To preserve its right to a deficiency judgment, the creditor must act in substantial, but not necessarily flawless, compliance with the Louisiana Deficiency Judgment Act. In other words, only a fundamental or obviously prejudicial defect will bar the deficiency action. Citicorp Acceptance Co., Inc. v. Roussell, 601 So.2d 350, 354 (La.App. 1st Cir.1992); Whitney National Bank v. FWF, Inc., 93-1152, 93-1153, p. 4 (La.App. 4 Cir. 3/29/94), 635 So.2d 361, 364. A fundamental defect, as in an appraisal, necessarily entails unfairness, injustice, or prejudice to the debtor.

One whose property has been sold by executory process with benefit of appraisal may attack the appraisal of the property in the creditor’s later ordinary action for a deficiency judgment. American Bank and Trust Co. v. Price, 28,018, p. 3 (La.App. 2 Cir. 4/3/96), 688 So.2d 536, 543. Because a sale with proper 1 ^notice and with benefit of appraisal that is valid on the face of the executory process and sheriffs record is legally presumed to have been conducted as the law directs, those who assert the lack of qualifications of the appraisers bear a burden of proof that the jurisprudence has consistently said to be heavy or substantial. Ford Motor Credit Co. v. Blackwell, 295 So.2d 522, 523 (La.App. 4th Cir.1974); Calcasieu Marine National Bank v. Miller, 422 So.2d 558, 560 (La.App. 3rd Cir.1982).

A debtor’s mere supposition or argument that the appraisal is or was unfairly or unjustly prejudicial to the debtor and thus invalid, without some evidence to establish that fact, will not be deemed to satisfy the substantial burden of proof and rebut the presumption that the sale was conducted as the law directs. Whitney National Bank, supra; Calcasieu National Bank, supra; Stockman v. Money, Inc., 277 So.2d 504, 506 (La.App. 1st Cir.1973).

In its reasons for judgment, the trial court stated:

In the instant matter, there was only one piece of property to be appraised. Richard T. Kimball Jr. was appointed to appraise the property on behalf of the bank. Mr. Kimball performed two separate appraisals: one on January 8, 2010, and another on May 25, 2010. Tedesco described Mr. Kimball’s appraisals as “drive-by” appraisals tantamount to a fundamental defect for lack of minuteness. Mr. Kimball wrote in his appraisal summary report that the “features and improvements were taken from the current MLS listing,” or multiple listing service, a database that stores home information to enable appraisals. He further wrote that he “inspected the subject [property] from the street and assumes that the condition and square footage is accurate.” Mr. Kimball appraised the property in January for ONE MILLION ONE HUNDRED THOUSAND 00/100 ($1,100,-000.00) DOLLARS. His May appraised value was NINE HUNDRED AND NINETY THOUSAND 00/100 ($990,-000.00) DOLLARS. Mr. Kimball electronically signed his appraisal but he did not sign under oath. Ms. Brenda Douglas, a representative from the Orleans Parish | ^Sheriffs Office, testified that the sheriffs office appointed J.R. Richardson to appraise the property on behalf of Tedesco. Mr. Richardson did not submit a written appraisal. He appraised the property for ONE MILLION ONE HUNDRED THOUSAND 00/100 ($1,100,000.00) DOLLARS and signed the sheriffs book under oath. Ms. Douglas testified that she averaged the two appraisals to reach the refereed amount of ONE MILLION FORTY FIVE 00/100 ($1,045,000.00) DOLLARS. This court finds that Mr. Kimball’s appraisal was valid. The goal was to realize as much money from the sale as possible. Moreover, similar to the defendants in Williams, supra, Tedesco failed to offer any evidence that had Kimball inspected the interior of the Tedesco property, his appraisal would have been higher. See Williams v. Perkins-Siegen Partnership, 93-2131 (La.1995); 649 So.2d 367, 370. Interestingly, it is unknown how Tedesco’s appraiser arrived at his appraised value as his appraisal was not admitted into evidence. The court finds that the goal of trying to get as much money as possible for this property was accomplished in this case. As such, the court finds that Tedesco was not prejudiced by Kim-ball’s appraisal.
The court continued:
Tedesco also believes that Mr. Kim-ball’s failure to sign the sheriff’s book under oath is fatal to FBT’s deficiency judgment action. La.Rev.Stat. Ann. § 13:4365(A) provides that “[t]he appraisers shall take an oath to make a true and just appraisal of the property.” Tedesco cites to a Louisiana Court of Appeal Fourth Circuit opinion in support of dismissal. See Bourgeois v. Sazdoff, 2963 (La.App. 4 Cir. 4/8/68); 209 So.2d 320. In Bourgeois, the defendant in a deficiency judgment action filed a number of challenges to the underlying executory process proceeding. See id. The court in Bourgeois pointed to a number of defects in the process but focused mainly upon whether the property was properly appraised. Id. at 325. The defendant apparently appointed himself as an appraiser and in doing so appraised the property at TWENTY FIVE THOUSAND ($25,000.00) DOLLARS. Id. The defendant-appraiser properly signed the appraisal and took an oath. Id. The plaintiff, like the defendant, also appointed himself as an appraiser and orally delegated to his lawyer the obligation to take the oath and sign the appraisal book. Id. The court reviewed the oath and held that neither the plaintiff nor his lawyer executed a proper oath, noting |17that the oath was not that “of the plaintiff as an appraiser nor [was] is it the oath of ... the attorney. The taking of an oath is a personal thing ... and it cannot be taken or subscribed in a representative capacity.” Id. The court referenced the appraisal made by an attorney for the plaintiff, noting that it was for FOUR THOUSAND 00/100 ($4,000.00) DOLLARS. Id. The sheriff in the case appointed a third appraiser due to the valuation difference between the two parties who signed the oath but failed to state his valuation of the property. Id. at 326. The sheriffs proces verbal stated that the third appraisal was for SIX THOUSAND 00/100 ($6,000.00) DOLLARS. Id. The court questioned how the sheriff could arrive at an appraised value in light of its appraiser’s failure to submit a valuation. Id. The court ultimately held that even if the sheriffs appraiser offered a valuation of the property, “the appraisement of plaintiff was clearly invalid for the lack of the oath, amounting to no appraisal at all.” Id.
The Bourgeois case is distinguishable from the instant matter as there is no dispute that the appraisers in this case were qualified. Mr. Kimball prepared two separate appraisals, both of which he electronically signed. The appraiser appointed by the sheriff for Tedesco took an oath and signed the appraisal book as to his amount, but did not produce a formal appraisal. This court does not believe that Tedesco has been prejudiced by Kimball’s failure to take an oath. Moreover, in John Deere Co. v. Loewer, 86-453 (La.App. 3 Cir. 4/8/87); 505 So.2d 973, 975, the Louisiana Court of Appeal Third Circuit noted that when “a creditor attempts to cause an unfair appraisal, the sale should be declared without appraisal; however, where there is substantial compliance with statutory appraisal requirements the court should not hold the sale without benefit of appraisal for purely technical reasons.” Id. The court went on to hold that “the lack of a formal oath [was] not so fundamentally defective as to render an appraisal invalid thereby denying a creditor a deficiency judgment.” Id. at 976. Tedesco takes issue with this case arguing that it is distinguishable because Kimball failed to sign the appraisal, sign the sheriffs office form, and did not take an oath. First, Kimball electronically signed his appraisal. Second, the court in Deere focused its attention not simply on the absence of an oath, but on whether the appraisal was unjust or unfair. See id. The court noted that an opponent to the deficiency judgment “must show that the appraisal was fundamentally defective i.e., an unjust, unfair appraisal by an | ^unqualified appraiser....” Id. The court reversed the judgment of the trial court and granted the requested deficiency judgment, noting that “[t]he record [was] void of any evidence that [plaintiff] attempted to circumvent the law and cause an unjust and unfair appraisal.” Id. Similarly, the court finds that the failure of Mr. Kimball to take a formal oath is not so fundamentally defective as to render the appraisal invalid, especially in light of the fact that Tedesco failed to show that FBT attempted to circumvent the law to cause an unjust and unfair appraisal, or even that the appraisal itself was unjust or unfair. Indeed, the goal of the appraisal was to obtain the highest price for the property and the appraisals accomplished this goal.

We find no error in the reasoning and rulings of the trial court on this issue. Therefore, the assignment of error concerning the validity of the FBT appraisal is without merit.

Finally, we address FBT’s second assignment of error: that the trial court erred in assessing costs against FBT, the prevailing party. Indeed, the judgment reveals that the trial court assessed a portion of the sheriffs fees and all costs against FBT. La. C.C.P. art. 1920 provides:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

In Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 07-0158, 07-1282, p. 40 (La.App. 4 Cir. 7/2/08), 989 So.2d 164, 191, we stated:

Thus, the general rule is that all costs, both the prevailing side’s and his or her own, are to be paid by the party cast, although the court may make an “equitable” different provision for costs. Bowman v. New Orleans Public Service, Inc., 410 So.2d 270, 271 (La.App. 4th Cir.1982). The assessment of costs against a prevailing party has been considered an abuse of discretion [absent] proof that the prevailing party incurred the costs pointlessly or engaged in other conduct that justified the 119assessment of costs against it. Amato v. Office of Louisiana Commissioner of Securities, 94-0082, p. 12 (La.App. 4 Cir. 10/3/94), 644 So.2d 412, 419.

We find nothing in the record to support the assessment of costs against FBT. Therefore, we reverse that part of the judgment, holding that all fees and costs be assessed against Tedesco and TTI.

Based on the foregoing, we recast the judgment as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that judgment is rendered in favor of First Bank and Trust and against Todd Tedesco, personally, and Todd Ted-esco Investments, L.L.C., jointly, severally, and in solido, in the full sum of $915,874.00, together with the full amount of sheriffs fees and commissions.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all costs and attorney’s fees are hereby assessed against Todd Tedesco and Todd Tedesco Investments, L.L.C., jointly, severally, and in solido.

AFFIRMED IN PART; AMENDED IN PART; RENDERED.

      . Tedesco did not testify or appear at trial. Neither Tedesco nor TTI called any witnesses at trial.

      . Whether or not the 25 June 2008 continuing guaranty was transferred to TTHB is one of the primary issues presented on appeal.

      . Harrison could only say definitively that a new continuing guaranty was printed based on the data she brought to court.

      . Even assuming her testimony is terminologically inexact, her testimony and/or the literal language of the continuing guaranty fully support FBT's position.