author: KEATY, Judge.

text:
    Raymond ALEXANDER v. CITY OF ALEXANDRIA, et al.
    No. 14-452.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    Kelvin G. Sanders, Attorney at Law, Alexandria, Louisiana, for Plaintiff/Appellant Raymond Alexander.
    Steven M. Oxenhandler, Michael J. O’Shee, Gold, Weems, Bruser, Sues & Rundell, Alexandria, Louisiana, for Defendant/Appellee City of Alexandria.
    Brian D. Cespiva, Attorney at Law, Alexandria, Louisiana, for Defendant/Appel-lee Alexandria Municipal Fire & Police Civil Service Board.
    Court composed of J. DAVID PAINTER, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

|, Plain tiff, Raymond Alexander, Sr., appeals the trial court’s judgment in favor of Defendants, the City of Alexandria (the City) and the Alexandria Municipal Fire & Police Service Board (the Board). For the following reasons, the trial court’s judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND

In this employment termination case, the issue is whether the standards required by La.R.S. 38:2181(B)(2) for notifying a fireman that he was under investigation were met. In that regard, Alexander was a firefighter employed by the Alexandria Fire Department (AFD) who lied about having an ill son in order to delay having to take a random drug test, which was scheduled for the morning of March 28, 2012. On the evening prior to the drug screen, Alexander had taken pain medication not prescribed to him by a doctor, and he feared failing the test for that reason. Alexander caused further delay by falsely claiming that he was meeting with his daughter in Lafayette on the morning of March 29, 2012. As a result of his lies, almost forty-eight hours passed between the time he said he took the medication and the time he finally took the drug test on the evening of March 29, 2012. His test results came back as diluted. Alexander was subsequently terminated by the AFD through written correspondence dated May 10, 2012.

Alexander appealed his termination to the Board, which affirmed the AFD’s decision. Alexander then appealed the Board’s decision to the trial court, which also affirmed the Board’s decision.

In this instant appeal, Alexander assigns as error the trial court’s affirmation of the Board’s decision not to reverse the AFD’s termination. Alexander contends |gthat the AFD failed to meet the standards required by Louisiana law, La.R.S. 33:2181(B)(2), for notifying a fireman that he was under investigation.

STANDARD OF REVIEW

The standard of review utilized in this civil service disciplinary matter was enunciated by the supreme court in Mathieu v. New Orleans Public Library, 09-2746, pp. 5-6 (La.10/19/10), 50 So.3d 1259, 1262-63, as follows:

Appellate courts reviewing civil service disciplinary cases are presented with a multifaceted review function. Bannister [v. Dep’t of Sts., 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647]; Walters [v. Dep’t of Police of the City of New Orleans, 454 So.2d 106, 113 (La.1984) ]. Initially, deference should be given to the factual conclusions of the civil service commission. A reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Bannister, 95-0404 at 8, 666 So.2d at 647; Walters, 454 So.2d at 114. Then, the court must evaluate the commission’s imposition of a particular disciplinary action to determine if it is both based on legal cause and is commensurate with the infraction; the court should not modify the commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. Id. “Arbitrary or capricious” means the absence of a rational basis for the action taken, Bannister, 95-0404 at 8, 666 So.2d at 647; “abuse of discretion” generally results from a conclusion reached capriciously or in an arbitrary manner, Burst v. Board of Commissioners, Port of New Orleans, 93-2069, p. 5 (La.App. 1 Cir. 10/7/94),-646 So.2d 955, 958.

Thus, the clearly wrong or manifest error standard of review is applicable in the instant matter.

DISCUSSION

In his only assignment of error, Alexander contends that the AFD failed to meet the notification standards required by La.R.S. 33:2181, which provides in pertinent part:

B. Whenever a fire employee is under investigation, the following minimum standards shall apply:
|s(2) The fire employee being investigated shall be informed in writing at the commencement of any interrogation of the nature of the investigation, of the identity and authority of the person conducting such investigation, of the identity of all persons present during such interrogation, and of the specific charges or violations being investigated. The fire employee shall be allowed to make notes.

In the present case, the record contains written correspondence from AFD Fire Chief Bernard Wesley to Alexander dated April 4, 2012. The correspondence provided Alexander with written notice of the AFD’s initiation of a formal investigation into his actions. Alexander was further advised of the nature of the investigation, that AFD Fire Prevention Chief Larry King would conduct the investigation, and of the specific alleged violations that Chief King would investigate. The correspondence was signed by both Chief Wesley and Alexander on April 4, 2012. Under Alexander’s signature, the phrase “Received by Firefighter Raymond Alexander” is noted.

Following this April 4, 2012 correspondence, Alexander met with Chief King on April 13, 2012, April 17, 2012, and April 19, 2012. Prior to each meeting, Alexander was not provided written correspondence similar to the April 4, 2012 written correspondence. In his appellate brief and trial court testimony, Alexander argues that he should have been provided written correspondence in accordance with La.R.S. 33:2181(B)(2) and identical to the April 4, 2012 written correspondence at the beginning of each and every meeting which occurred on these three dates. Since no written correspondence was received after April 4, 2012, Alexander contends that the AFD failed to comply with La.R.S. 33:2181(B)(2).

Thus, we must determine whether an interrogation occurred on these three dates. If an interrogation occurred, we must then determine whether the notice ^provided in the April 4, 2012 written correspondence, which complied with the requirements of La.R.S. 33:2181 (B)(2), applied to the April 13, 2012, April 17, 2012, and April 19, 2012 alleged interrogations.

With respect to whether the April 13, 2012 meeting constitutes an interrogation, we review the record which shows that the May 10, 2012 written correspondence terminating Alexander was submitted into evidence at the Board’s hearing which occurred on July 25, 2012. This twelve-page letter plus attachments provides a factual basis, a timeline of events, truths and mistruths, and the rules that Alexander violated which led to his termination. Pursuant to this correspondence, April 13, 2012, was the date of the first internal affairs investigation meeting between Chief King and Alexander. The correspondence indicates that at the commencement of that meeting, Alexander signed the Firefighters’ Bill of Rights. The bill of rights is a reproduction of the provisions of La.R.S. 33:2181, entitled “Applicability; minimum standards during investigation; penalties for failure to comply.” Chief King further testified that Alexander signed the bill of rights. The written correspondence further reveals that Alexander presented Chief King with a “Timeline and Rebuttal to Administrative Leave Letter and Investigation.” Both the bill of rights and rebuttal were also submitted into evidence at the Board’s hearing.

Notably, there is no indication in this May 10, 2012 correspondence, nor anywhere in the record, that any questions were asked during this April 13, 2012 meeting. At the Board’s hearing, Chief King testified that he did not ask Alexander any questions on April 13, 2012, but, instead, rescheduled his investigation for April 17, 2012, in order to review the rebuttal document. Chief King testified that April 17, 2012, was the first time he actually questioned |sAlexander. Thus, an inter- • rogation did not take place for purposes of La.R.S. 33:2181(B)(2) on April 13, 2012.

Even if an interrogation did occur on April 13, 2012, the elements of La.R.S. 33:2181(B)(2) would be satisfied. Specifically, in Alexander’s written rebuttal that he provided to Chief King on April 13, 2012, Alexander stated that “[o]n April 4, 2012, I was called to Chief Cook’s[] office again in order to receive another letter. This time, Jerald Duncan and Bryant McClendon came with me.” The foregoing shows that Alexander was in possession of the April 4, 2012 correspondence prior to the April 13, 2012 meeting. Thus, the requirements of La.R.S. 33:2181(B)(2) were satisfied.

The Board was also presented with testimony and evidence regarding the April 17, 2012 meeting. During the hearing, Chief King admitted that an interrogation occurred on April 17, 2012, although he did not provide Alexander with any written document immediately prior to that interrogation other than the Firefighters’ Bill of Rights. Chief King testified that Duncan and McClendon accompanied Alexander to this interrogation. The bill of rights dated April 17, 2012, shows that Duncan and McClendon accompanied him as they both signed the bill of rights as witnesses. Thus, Alexander knew who was present at that interrogation.

Chief King further testified that at the April 17, 2012 interrogation, Alexander was in possession of the April 4, 2012 written correspondence. Specifically, Chief King testified that Alexander “had a letter from the chief that indicated the nature of the investigation.” Importantly, Chief King testified that he (Chief King) “referred to that [April 4, 2012] letter” during that interrogation. jfiAlexander’s statement taken during the April 17, 2012 interrogation was also submitted into evidence at the Board’s hearing. In his statement, Alexander quoted from the April 4, 2012 letter when discussing the chain of events leading to his termination.

Based on the foregoing, an interrogation did occur on April 17, 2012. The evidence shows that Alexander was in possession of the April 4, 2012 letter prior to and at the April 17, 2012 interrogation. Moreover, Alexander knew who was present at the interrogation as shown by the bill of rights. Thus, the provisions of La.R.S. 33:2181(B)(2) were complied with on April 17, 2012.

Finally, a subsequent statement of Alexander taken by Chief King on April 19, 2012, was also submitted into evidence at the Board’s hearing. In his statement, Alexander admitted to requesting the instant meeting occurring, on April 19, 2012, in order to discuss more of the situation which occurred on March 28, 2012, i.e., the day he skipped his drug test. The foregoing shows that it is questionable whether an interrogation under La.R.S. 33:2181(B)(2) actually occurred since the meeting was requested by Alexander. Nevertheless, Chief King once again presented Alexander with the bill of rights. The bill of rights, dated April 19, 2012, was signed by Alexander, Duncan, and McClendon. Thus, Alexander knew who was present at that alleged interrogation. Additionally, the requirements were met during this alleged interrogation for the same reasons they were met at the April 17, 2012 interrogation and the April 13, 2012 meeting. Specifically, Alexander was in possession of the April 4, 2012 correspondence prior to the April 19, 2012 alleged interrogation.

Accordingly, the foregoing shows that Alexander was provided with all required written information pursuant to the April 4, 2012 correspondence. He |7used that information to provide a rebuttal document. He had the written notice with him while he was interrogated. He knew exactly what was occurring in relation to the investigation. Through the written notice and his copies of the bill of rights, he knew the identity all persons present at each meeting with Chief King.

At the civil service proceeding, the Board was presented with the above evidence and voted to uphold the AFD’s termination of Alexander. Following the appeal of the Board’s decision, the trial court stated: “[Considering the standard of review is clearly erroneous or manifest error, I just don’t see ... plaintiff meeting that- burden here today and to the extent that I would overturn the decision of the Board[,] so I’m gonna deny your request.” The trial court then affirmed the Board’s decision.

Finally, we note that Alexander provided two cases in support of his position. In his' first cited case, Ouachita Parish Police Jury v. Ouachita Parish Fire Protection District No. 1 Civil Service Board, 46,480 (La.App. 2 Cir. 9/21/11), 72 So.3d 987, a firefighter’s termination was overturned by a civil service board because his interrogation was not recorded as required by La.R.S. 33:2181(B)(4). Pursuant to La. R.S. 33:2181(B)(4), “[a]ll interrogations of any fire employee in connection with the investigation shall be recorded in full.” In the present case, Alexander’s assignment of error only deals with La.R.S. 33:2181(B)(2) rather than La.R.S. 33:2181(B)(4). Regardless, there is no issue regarding the recording of Alexander’s statements as the record contains all of the recorded statements taken during Alexander’s interrogations. Thus, Ouachita Parish Police Jury is inapplicable to the present case.

Alexander also cites Bracey v. City of Alexandria, 11-621 (La.App. 3 Cir. 2/1/12), 84 So.3d 669. In Bracey, the main issue was whether the- city violated the |ssixty-day investigative period required by La. R.S. 33:2186. Since the issue in the present case deals with a different statute, i.e., La.R.S.33:2181(B)(2), Bracey does not offer guidance with respect to the issue in the present case. In fact, this court in Bracey only briefly mentions La. R.S.33:2181(B)(2) when it recites the statute in response to the plaintiffs second and third assignments of error, which this court found lacked merit. Thus, Bracey is also inapplicable since it provides no guid-anee for the interpretation of La.R.S. 33:2181 (B)(2).

For the reasons stated above, we find the trial court was not manifestly erroneous, and its judgment is affirmed.

DECREE

The trial court’s judgment is affirmed. Costs of this appeal are assessed against Plaintiff/Appellant, Raymond Alexander.

AFFIRMED.

      . First Assistant Chief Bruce Cook was employed by the AFD.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INS. CO., et al. v. Nancy McCABE, et vir.
    Nos. 14-501, 14-502.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Mickey Stephens deLaup, Thomas Paul Anzelmo, Jr., Mickey S. deLaup, APLC, Metairie, LA, for Defendants/Appellants-John McCabe and Nancy McCabe.
    Terry George Aubin, Alexandria, LA, for Defendant/Appellee-Stephan Guillory.
    James Everet Brouillette, Metairie, LA, for PlaintiffAppellee-State Farm Mutual Automobile Insurance Co.
    Misty Shannon Antoon, Alexandria, LA, for Defendants/Appellees-City of Alexandria and Stephan Guillory.
    Derrick G. Earles, the Laborde Law Firm, Marksville, LA, for Plaintiffs/Appel-lees-Nicole Bordelon and Kenny Bordelon.
    Emily G. Meche, Brian Caubarreaux & Associates, Marksville, LA, for Interve-nor/Appellee-Brian M. Caubarreaux.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

hln' this dispute following a vehicular collision, the trial court dismissed two defendants, Steven Guillory, defendant driver, and his employer, City of Alexandria, pursuant to granting their motion for summary judgment. Mr. Guillory collided with livestock roaming on a closed-range highway and then with another vehicle, driven by plaintiff, Ms. Bordelon. The remaining defendants, John and Nancy McCabe, the owners of the livestock, appealed, arguing that genuine issues of material fact exist as to the negligence of Mr. Guillory and his comparative fault in bringing about the injury to Ms. Bordelon. Reasoning that the liability of livestock owners under the stock-laws does not also preclude finding third-party liability under the comparative fault regime, we affirm the trial court’s grant of partial summary judgment, but conclude the McCabes are entitled to a reduction in any judgment rendered against them for the comparative fault, if any, of Mr. Guillory and the City of Alexandria.

I.

ISSUE

We shall consider: (1) whether the trial court erred in granting summary ■ judgment, resulting in the dismissal of defendants Stephen Guillory and the City of Alexandria, and (2) whether a judgment rendered against defendants John and Nancy McCabe should be reduced in accordance with the potential comparative fault of defendants Stephen Guillory and the City of Alexandria, even after being dismissed by summary judgment.

J2II.

FACTS AND PROCEDURAL HISTORY

On February 14, 2012, Steven Guillory collided with three cows on LA Highway 1, a designated closed-range highway under the stock-law statutes. Mr. Guillory was driving a vehicle owned by the City of Alexandria, his employer, and was in the course and scope of employment. After colliding with the cows, Mr. Guillory’s vehicle collided with a vehicle driven by Nicole Bordelon, who was following the cows while traveling in the opposite direction.

It is undisputed that the cows belonged to John and Nancy McCabe and had inexplicably escaped from their fenced-in pasture. The cows were dark brown in color and had wandered into the roadway from the McCabe’s property. The collision occurred at night and this portion of the highway was not lit, making the cows difficult to see.

Ms. Bordelon had come upon the cows while driving home and slowed to follow behind them. She called to notify the Sheriffs Department of their presence and then continued to follow behind the cows to alert oncoming drivers. When Mr. Guillory approached from the opposite direction, Ms. Bordelon began flashing her high-beam lights to alert him to the cows in the roadway. Mr. Guillory did not understand the warning and continued driving at the 55 mph speed limit. Mr. Guillo-ry flashed his high-beams back at Ms. Bordelon to indicate he had been driving with his low-beam lights on and not his high-beam lights. Mr. Guillory soon after struck the three cows in the roadway. Mr. Guillory denies ever seeing the cows before impact.

Suit was first filed by State Farm Mutual Automobile Insurance, Ms. Bordelon’s insurer, for the property damages to the Bordelon vehicle. A second |ssuit was subsequently filed by Ms. Bordelon. The two suits were consolidated. The City of Alexandria and Stephan Guillory moved for summary judgment following discovery. The trial judge concluded there was no genuine issue of material fact and granted partial summary judgment, dismissing the Gity of Alexandria and Stephan Guillory. John and Nancy McCabe appeal the grant of partial summary judgment. Neither State Farm nor Ms. Bordelon appealed.

III.

STANDARD OF REVIEW

When an appellate court reviews the grant or denial of a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). The motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

IV.

LAW AND DISCUSSION

Appellants assert that there exist genuine issues of material fact that prevent granting summary judgment to Mr. Guillo-ry and the City of Alexandria. Appellants also assert that summary judgment would be improper under the current facts based on- the comparative fault regime. We agree that the actions of Mr. 14GuilIory and the City of Alexandria should be considered under the comparative fault regime, but are prevented from determining whether these defendants were properly dismissed by summary judgment.

Summary Judgment

When a party appeals a judgment of the trial court, the party may only appeal “the portions of the judgment that were adverse to [that party].” Nunez v. Commercial Union Ins. Co., 00-3062, p. 2 (La.2/16/01), 780 So.2d 348, 349. In Grimes v. Louisiana Medical Mutual Insurance Co., 10-39 (La.5/28/10), 36 So.3d 215, after one defendant was dismissed by summary judgment, the remaining co-defendants appealed. The supreme court held that the court of appeal could not determine the appropriateness of summary judgment when the plaintiff did not appeal the judgment dismissing a party. Id. The failure of the plaintiff to appeal caused the judgment to “acquire the authority of a thing adjudged and is now final between the parties.” Id. at 217. The supreme court therefore determined the court of appeal erred in reversing the district court’s grant of summary judgment. Grimes, 36 So.3d 215.

Plaintiffs, State Farm and Ms. Bordelon, did not appeal the grant of summary judgment dismissing Mr. Guillory and the City of Alexandria as defendants in the suit. The McCabes, co-defendants in the dispute, appeal the dismissal. Therefore, because the judgment between the dismissed defendants and plaintiffs has now been adjudged and is final, the failure of Ms. Bordelon or State Farm to appeal prevents this Court from determining whether summary judgment was proper. The district court’s grant of partial summary judgment is affirmed.

| ^Comparative Fault

Though the grant of summary judgment may not be disturbed on appeal under Grimes, the filing of an appeal by the McCabes “ ‘brought up on appeal the portions of the judgment that were adverse to [them].’ ” Id. at 217. Therefore, while Mr. Guillory and the City of Alexandria cannot be cast in judgment, the McCabes may be “entitled to a reduction in judgment by the percentage of fault allocated to [Mr. Guil-lory and the City of Alexandria] in accordance with the general principles of comparative fault set forth in La.Civ.Code art. 2323(A).” Id.

The City of Alexandria and Mr. Guillory argue that they are not liable because the accident occurred on a stock-law highway and Mr. Guillory had no duty to maintain a lookout for roaming livestock. Under La.R.S. 3:2803, a livestock owner will not “knowingly, willfully, or negligently permit his livestock to go at large” upon specified Louisiana highways. To dispel liability, a livestock owner who is in violation of La.R.S. 3:2803 must establish that the cause of the injury “was the result of an independent cause,” which includes the actions of a third party. Church v. Shrell, 43,972, p. 5 (La.App. 2 Cir. 1/21/09), 8 So.3d 70, 73.

The City of Alexandria and Mr. Guillory posit that because the McCabes cannot dispel with their liability in such a manner, they are fully liable and, therefore, Mr. Guillory is not liable at all. Buller v. American National Property & Casualty Cos., 02-820 (La.App. 3 Cir. 2/5/03), 838 So.2d 67 concludes, however, that the liability of the livestock owner does not prevent partial liability of a third party under comparative fault. This court in Butler held that plaintiffs momentary lapse in attentiveness to the road prevented him from seeing the livestock in the road. Id. Without such distraction, the record presented | fino other reason for why the plaintiff should not have seen the cow in the road. Id. This court affirmed the trial court’s judgment to apportion plaintiff 75% of fault, even though the livestock owner could not exculpate himself from liability under the stock-laws. Id. Therefore, the question is not whether the McCabes are at fault as owners of the livestock under La.R.S. 3:2802, but whether Mr. Guillory was negligent in his duty to drive as a prudent driver.

In this case, the decision is whether Mr. Guillory’s conduct, his failure to see the cows and his failure to slow when blinded by high-beam lights, was negligent. Comparative fault in Louisiana allows a percentage of fault to be assigned to all parties contributing to the injury or loss. This distribution is made “regardless of whether the person is a party to the action or a nonparty ... or that the other person’s identity is not known or reasonably ' ascertainable.” La.Civ.Code art. 2323. “Comparative negligence is determined by the reasonableness of the party’s behavior under the circumstances.” Khaled v. Windham, 94-2171, p. 4 (La.App. 1 Cir. 6/23/95), 657 So.2d 672, 676. The determination of Mr. Guillory’s fault and percentage of fault in this collision is appropriate for jury determination.

V.

CONCLUSION

For the foregoing reasons, the grant of partial summary judgment is affirmed. Any judgment cast against the McCabes should be determined and reduced in accordance with the general principles of comparative fault after considering the potential liability of all parties involved.

Costs of this appeal are taxed against John and Nancy McCabe.

AFFIRMED.


author: AMY, Judge.

text:
    Karen Istre DAIGLE v. John LaPOINT, et al.
    No. 14-410.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Timothy M. Cassidy, Cassidy Law Firm, Jennings, LA, for Plaintiff'Appellee, Karen Istre Daigle.
    Todd M. Ammons, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendants/Appellants, State Farm Mutual Automobile Insurance Company John LaPoint.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN E. CONERY, Judges.
   AMY, Judge.

| following a trial in which the plaintiff successfully recovered damages associated with an automobile accident, the plaintiff filed a motion to assess costs. The trial court awarded various costs as requested, including expert witness fees for the medical professionals who testified at trial. The defendants appeal, asserting that the trial court awarded excessive fees. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Karen Istre Daigle, filed suit alleging physical injury as the result of a January 2010 automobile accident. She named the driver of the other vehicle, John LaPoint, and his insurer, State Farm Mutual Automobile Insurance Company, as defendants. A jury found in favor of the plaintiff, awarding past medical expenses ($93,375.12), past lost wages ($4,536.00), past pain and suffering, both physical and mental ($75,000.00), future pain and suffering, both physical and mental ($25,000.00), disability ($10,000.00), and loss of enjoyment of life, past and future ($45,000.00). The jury denied the plaintiffs request for disfigurement damages.

Thereafter, the plaintiff filed a motion to assess costs seeking reimbursement for a variety of trial-associated expenses. The plaintiff attached invoices for the subject expenses to the pleading. At the subsequent hearing, the defendants argued that the fees were unreasonable, particularly those related to fees charged by the plaintiffs treating physicians. The trial court rejected that argument and awarded the fees as pled.

| gThe judgment reflects awards as follows: 1) Copy costs of $1.00 per page of records introduced at trial and extra copy to defense counsel ($1,984.00); 2) Rental fees for Plaint Film View Box ($350.00); 3) InfoTech equipment and technical assistance of computer and view screen at trial ($300.00); 4) Costs to copy MRI disc to actual film by Jeff Davis ($60.00); 5) Court appearance fee for nurse practitioner Kelly Murray, including records review & trial testimony ($1,045.00); 6) Court appearance fee for physical therapist Ashley Fontenot, including records review & trial testimony ($1,850.00); 7) Court appearance fee for Dr. Craig Morton, including records review & trial testimony ($10,000.00); 8) Court appearance fee for Dr. Steven Hale, including records review & trial testimony ($10,000.00); and 9) Court appearance fee for Dr. Patrick Griffith, including records review & trial testimony ($3,000.00).

The defendants appeal and, on a designated record, question the amounts of the court costs awarded for the copy charges and for each of the three physicians. The defendants contend that each award reflects an abuse of discretion.

Discussion

Court Costs

Louisiana Code of Civil Procedure Article 1920 provides that, “[ujnless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.” Additionally, and “[ejxcept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” The supreme court has explained that a court has great discretion in assessing court costs. Aucoin v. Southern Quality Homes, LLC, 07-1014 (La.2/26/08), 984 So.2d 685 (quoting Cajun Elec. v. Owens-Coming Fiberglass Corp., 616 So.2d 645 (La.1993)).

lain the present case, the trial court assessed general court costs and assessed expert witness fees as well. With regard to general court costs, La.R.S. 13:4533 provides that: “The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.” As for expert witness fees, La.R.S. 13:3666 provides, in part, that:

A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the ■results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.
C. In either manner provided in Subsection B, the court shall also determine and tax as costs, to be paid by the party east in judgment, the reasonable and necessary cost of medical reports and copies of hospital records.

Copy Costs

As seen above, the trial court awarded $1,984.00 in copy costs, which reflect a $1.00 per page copy cost and an additional copy of the plaintiffs’ exhibits to the defendants. The defendants challenge that figure both for the $1.00 per page cost and the charge for the duplicate copy to them. They note that the plaintiff provided |4no evidence regarding the costs incurred in this regard and suggests that the “copy of what would ultimately become part of the record was never requested by Defendants.”

On review, we note that this appeal arrives at this court on a designated record, which lacks context regarding the proceedings outside of the underlying judgment and motion to assess costs. See Uniform Rules-Courts of Appeal, Rule 2-1.17. The parameters of that limited record reveal no abuse of discretion in the trial court’s award of copying costs. Neither the amount of the per copy charge nor the determination that a courtesy copy for defense council are so patently excessive, if at all, that correction is appropriate.

Accordingly, we find no merit in this assignment of error.

Expert Fees

The defendants additionally challenge the $10,000.00 awards made to each of two physicians who testified during the plaintiffs case in chief as well as the $3,000.00 awarded to the physician who they assert was only called during the plaintiffs rebuttal. While the defendants acknowledge that the physicians charged the awarded amounts for their trial-related services, the defendants assert that the trial court was required to shape the award based on the value of time employed and the degree of the learning/skill required of the expert per La.R.S. 13:3666(A). The defendants further point out that, in reasons for ruling, the trial court, referenced jurisprudence from this circuit which indicates that:

In fixing expert witness fees, each case must turn on its own peculiar facts and circumstances, but factors that may be considered are the amount of time spent in preparing for trial; time actually spent in court; the extent and nature of the work performed; and the knowledge, attainments and skill of the expert. Additional considerations include the awards to experts in similar cases, the IfiComplexity of the problem addressed by the expert, and the helpfulness of the expert’s report and testimony to the trial court.

Massie v. Deloach, 04-1425, p. 10 (La.App. 3 Cir. 3/2/05), 896 So.2d 1246, 1252, writ denied, 05-0786 (La.5/6/05), 901 So.2d 1107. (Citations omitted.)

The defendants argue, however, that the factors described in Massie, 896 So.2d 1246, when considered under the facts and circumstances of this case, do not support the fees awarded for the physicians’ assistance at trial. In their brief to this court, the defendants provide a brief synopsis of each physician’s testimony and suggest that the lack of complexity in the medical issues involved in this case and/or the purported lack of expertise associated with the testimony do not support the' award. Again, however, the defendants designated the appellate record, listing only those aspects of the record addressing the motion to assess costs. That information does not reveal an abuse of discretion in the trial court’s award of expert fees. To the extent the record is inadequate for the type of review requested by the defendants, that inadequacy cannot be imputed to the appellee. Grantt Guillory Enter., Inc. v. Quebedeaux, 12-931 (La.App. 3 Cir. 2/6/13), 110 So.3d 182. Rather, the appellant is responsible for the record on appeal. Id. Thus, “ “when the record does not contain an adequate transcript, narrative of facts or other satisfactory evidence, an appellate court can apply the presumption that the trial court’s judgment is correct and affirm.’ ” Id. at 188 (quoting Alexander v. Parish of St. John the Baptist, 09-840 (La.App. 5 Cir. 3/23/10), 33 So.3d 999, unit denied, 10-1289 (La.9/17/10), 45 So.3d 1056). As with the copying costs, we leave the award for expert fees undisturbed based on the record before the court.

This assignment of error lacks merit.

|fiDECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the defendants-appellants, State Farm Mutual Automobile Insurance Company and John LaPoint.

AFFIRMED.

CONERY, J., concurs.


author: GENOVESE, Judge.

text:
    CHASE HOME FINANCE, LLC, Successor by Merger to Chase Manhattan Mortgage Corporation a/k/a JPMorgan Chase Bank, N.A. v. Jacob FOX, et al.
    No. 14-489.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    Matthew D. Henrich, Katharine Dugal Henrich, Henrich & Henrich APLC, Sunset, LA, for Appellant: Matthew D. Hen-rich.
    Daniel A. Reed, Seale, Smith, Zuber & Barnette, Baton Rouge, LA for Plaintiff/Appellee: JPMorgan Chase Bank, N.A., Successor by Merger to Chase Home Finance, LLC.

      Chad P. Pitre, Opelousas, LA, for Appel-lee: St. Landry Parish Sheriff, Bobby Gui-droz.
    Court composed of J. DAVID PAINTER, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

|!Matthew D. Henrich, a third party purchaser of immovable property at sheriffs sale, appeals the trial court’s grant of a Motion to Annul Sheriffs Sale filed on behalf of JPMorgan Chase Bank, N.A., Successor by Merger to Chase Home Finance, LLC (Chase), the seizing creditor. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On April 28, 2011, Chase filed a Petition for Executory Process against Jacob Fox for the seizure of immovable property located in St. Landry Parish owned and mortgaged by Mr. Fox to satisfy his indebtedness on a mortgage note he executed with Chase. The petition asserted that there was a $77,597.49 outstanding balance on the note, plus interest of 6.00% per annum from August 1, 2009, until paid. Chase also sought attorney fees and all costs incurred in connection with the proceedings. The trial court ordered the seizure and sale of the property as requested by Chase.

The sale of the property by the St. Landry Parish Sheriff (Sheriff) was scheduled, cancelled, and eventually reset for January 22, 2014. Chase was not present at the sale. When the opening bid for the property was announced, it was erroneously stated to be two-thirds of the appraised value. The net appraisal value |2was . $44,500.00; accordingly, the minimum bid was announced to be two-thirds of that amount, or $29,667.00. Mr. Henrich paid the purchase price of $29,667.00.

Following the sale, Chase notified the Sheriffs office that it disputed the sale and that the Sheriff should not issue the deed to the property to Mr. Henrich. Chase advised that the writ amount exceeded $100,000.00; thus, Mr. Henrich’s bid of $29,667.00 was insufficient to purchase the property.

Upon learning that Chase disputed the validity of the sale, Mr. Henrich filed a Writ of Mandamus and Rule to Show Cause requesting that the trial court order the Sheriff to file a proces verbal and bill of sale issuing title of the property to him. In response, Chase filed a Motion to Annul Sheriffs Sale. Following a hearing, the trial court denied Mr. Henrich’s Writ of Mandamus and granted Chase’s Motion to Annul Sheriffs Sale. From said judgment, Mr. Henrich appeals.

ASSIGNMENTS OF ERROR

Mr. Henrich presents the following assignments of error for our review:

1. The trial court failed to rule ownership passed to the third party purchaser at the time the sale was perfected.
2. In rendering final judgment in favor of Chase Bank, the trial court erred by ruling the sale to the innocent third party purchaser was invalid.
3. The trial court erred by allowing Chase Bank’s redress for the violation of La.[Code Civ.P. art. 2338](B) to be against an innocent third party purchaser.

LAW AND DISCUSSION

In addressing the assignments of error raised in this appeal, we note that the facts are not in dispute. In such instances, this court has stated:

| sHowever, “[i]n a case where there are no contested issues of faet[] and the only issue is the application of the law to the undisputed facts, ... the proper standard of review is whether or not there has been legal error.” Tyson v. King, 09-963, p. 2 (La.App. 3 Cir. 2/3/10), 29 So.3d 719, 720 (quoting Bailey v. City of Lafayette, 05-29, p. 2 (La.App. 3 Cir. 6/1/05), 904 So.2d 922, 923, lurits denied, 05-1689, 05-1690, 05-1691, and 05-1692 (La.1/9/06), 918 So.2d 1054, 1055, and the cases cited therein).

Daigle v. Merrill Lynch, 12-1016, p. 3 (La.App. 3 Cir. 2/6/13), 107 So.3d 901, 903. Therefore, the standard of review which we are to apply in this case is whether the trial court’s ruling constituted legal error.

On appeal, Mr. Henrich first assigns as error the trial court’s failure to rule that ownership of the subject property passed to him, a third party purchaser, at the time the sale was perfected. In support thereof, Mr. Henrich cites La.R.S. 9:3158 which provides that an “adjudication is the completion of the sale; the purchaser becomes the owner of the article adjudged, and the contract is, from that time, subjected to the same rules which govern the ordinary contract of sale.” Additionally, he refers this court to La.Code Civ.P. art. 2342 which states that “[wjithin fifteen days after the adjudication, the sheriff shall pass an act of sale to the purchaser, in the manner and form provided by law. The act of sale adds nothing to the force and effect of the adjudication, but is only intended to afford proof of it.”

Based upon the foregoing provisions, Mr. Henrich contends that he acquired ownership of the property upon his paying the bid price which “consummated” the sale. Therefore, he concludes that “[g]iv-en the jurisprudence and public policy protecting innocent third party purchaser[s], the trial court erred in granting [Chase’s] Motion to Annul Sheriffs Sale.”

This assignment of error presupposes that the “sale was perfected.” However, in its ruling, the trial court expressly found that the sale was invalid. |4Thus, the trial court’s error, vel non, necessarily emanates from its determination, as stated in Mr. Henrich’s second assignment of error, that the trial court erred in ruling that the sale was invalid. Axiomatically, if the sale was invalid, there was no sale to be perfected, and ownership could not have passed.

Undisputedly, Chase was not present at the sale of the subject property. Therefore, the minimum purchase price for the property was governed by La. Code Civ.P. art. 2338 (emphasis added) which provides:

A. If the security interest, mortgage, lien, or privilege of the seizing creditor is superior to other security interests, mortgages, liens, and privileges on the property, he may require that the property be sold, even though the price is not sufficient to satisfy his or the inferi- or security interests, mortgages, liens, and privileges.
B. If the seizing creditor is not present or represented at the sale, the property shall not be sold for less than the amount necessary to fully satisfy his writ plus the costs.

In considering Chase’s Motion to Annul the Sheriffs Sale, the trial court reasoned:

When the language is clear and unambiguous, the [c]ourt is to follow the language^] and it is my opinion that the language of 2338(B) of the Code of Civil Procedure is very clear that [the property] is not to be sold [for] less than the amount to fully satisfy the writ plus costs.

Based upon the evidence, the trial court ruled as follows:

The [c]ourt finds in this case from the evidence that was adduced and the testimony of the witnesses that’s what happened. Chase had no one present at the sale. The amount of the bid did not satisfy the amount of the writ; therefore, the sale is invalid. It’s a null sale. It’s just invalid. With an invalid sale, it didn’t give [Mr. Henrich] ány rights.

For these reasons, the trial court annulled the sale and ordered the Sheriff to return any money paid by Mr. Henrich, and it denied his request for mandamus.

Mr. Henrich acknowledges in brief that “[t]here are no cases directly addressing the validity of a sale made in violation of La.[Code Civ.P. art.] 2338(B)[.]” Recognizing that in General Motors Acceptance Corp. v. Tullier, |fi453 So.2d 329, 331 (La.App. 3 Cir.1984), the creditor appealed a trial court’s dismissal of a suit for a deficiency judgment, we note that this court has opined: “If in fact the property was sold at the first offering for less than two-thirds of its appraised value, the sale could be declared null as having been made in violation of [La.Code Civ.P. art.] 2336. Monroe v. Jones, 136 La. 143, 66 So. 759 (1914).”

Mr. Henrich emphasizes that “[t]he rights of ownership of a third party purchaser are held sacrosanct by Louisiana courts” and that “the ownership rights of third party purchaser^] must be protected.” As between a seizing creditor and a third party purchaser, he concludes that “the ownership rights of a third party purchaser must be protected.” However, there is no legal authority to support his contention that his status as a third party purchaser negates the requirement that when the seizing creditor is not present, property being sold at sheriffs sale cannot be sold for less than the amount required to satisfy the writ plus costs.

Mr. Henrich cites Reed v. Meaux, 292 So.2d 557 (La.1973), in an effort to demonstrate the protection of rights of a third party purchaser relative to executory proceedings. With respect to Mr. Henrich’s reliance on Reed, we note that subsequent to that supreme court decision, La.R.S. 13:4112 was enacted. As noted by Chase, the provisions of La.R.S. 13:4112 address Mr. Henrich’s concern for the protection of third party purchasers. Louisiana Revised Statutes 13:4112 (emphasis added) provides:

Actions to set aside or annul judicial sales in executory proceedings

No action may be instituted to set aside or annul the judicial sale of immovable property by executory process by reason of any objection to form or procedure in the executory proceedings, or by reason of the lack of authentic evidence to support the order and seizure, where the sheriff executing the foreclosure has either filed the proces verbal of the sale or filed the sale for recordation in the conveyance records of the parish. Any party seeking to annul or set aside a judicial sale of immovable property through executory proceedings filed for record before the adoption of this Section must |fido so within six months of September 12, 1975. Nothing herein shall be construed to affect legal defenses otherwise available to any person against whom a deficiency judgment is sought after the public sale of immovable property through executory proceedings.

This court discussed Reed and La.R.S. 13:4112 in Guillory v. Fontenot, 413 So.2d 328, 331 (La.App. 3 Cir.1982) (second emphasis added), stating as follows:

In Reed, supra, the suit was filed after the proces verbal and sale had been recorded. In the case at hand, the suit for injunctive relief was filed after the property was adjudicated to Fontenot by virtue of the executory proceedings, but before the sheriff had filed the proces verbal of the sale or had filed the sale to Fontenot in the conveyance records. Such a procedure is clearly authorized by R.S. 13:4112. •
This statute prohibits an attack upon the validity of a judicial sale by executo-ry process after the recordation of the proces verbal of the sale or the recordation of the sale by the sheriff. The statute does not limit the attack to those instances where the property is adjudicated to the foreclosing creditor. It follows, therefore, that an attack on the validity of the sale by executory process can be made under the statute even though the adjudication was not made to a foreclosing creditor, provided that such attack is made prior to the recordation of the proces verbal or the recordation of the . sale. This suit, having been filed before the recordation of the proces verbal or the recordation of the sale to Fontenot, is authorized by LSA-R.S. 13:4112.
There being no dispute that substantive defects existed in the executory process, the trial court properly rendered judgment granting the permanent injunction.

Based upon the foregoing, we agree with Chase that by virtue of La.R.S. 13:4112, a third party purchasers’ “rights are protected, but the law defines the ‘consumation’ of the sale as the issuance of the proces verbal or the deed, not the tendering of the bid price” as argued by Mr. Henrieh. In this case, ownership of the property did not pass to Mr. Henrieh as the sale was never perfected. Additionally, pursuant to La.R.S. 13:4112, an action to annul a judicial sale may be instituted if it is timely done prior to the sheriffs filing of “the proces verbal of the sale or filling] the sale for recordation in the conveyance records of the parish[,]” |7which had not yet been done in this case. The statute does not limit or prohibit such an action when the property has been sold to a third party purchaser.

In this case, the evidence established that Chase was not present at the sale, thereby implicating the mandatory provisions of La.Code Civ.P. art. 2338. The amount bid by Mr. Henrieh was insufficient to satisfy the writ' amount plus costs as required. Therefore, we find no error in the trial court’s ruling that the sale to Mr. Henrieh was invalid because the sale was in violation of the provisions of La. Code Civ.P. art. 2338.

Finally, in his third assignment of error, Mr. Henrieh asserts that Chase’s redress should not be against him. Instead, he argues that “[disputes relating to the sheriff making procedural defects should be settled between Chase Bank and the St. Landry Parish Sheriffs Department, not with the innocent third party purchaser.” Although Mr. Henrich may not agree with the result, the remedy expressly provided for in La.R.S. 13:4112 is that the sale be annulled. Thus, we find no merit to this contention.

DECREE

For the reasons assigned, the judgment of the trial court granting the Motion to Annul Sheriffs Sale on behalf of JPMor-gan Chase Bank, N.A., Successor by Merger to Chase Home Finance, LLC, and' denying Matthew D. Henrich’s request for a Writ of Mandamus is affirmed. Costs of this appeal are assessed to Matthew D. Henrich.

AFFIRMED.

      . Chase's petition also names Lacey Gau-treaux, a "Third Party Non-Defendant in this matter reflected by the signing of the mortgage wherein she acknowledged and agreed to the indebtedness and the conditions contained in the mortgage and as a co-owner of the property [Chase requests] that she be served with a copy of these proceedings, and the Sheriff seize and sell all of his/her interest in the property.”

      . Chase asserts it failed to get proper notice of the sale date.

      . Although Mr. Henrich challenges their veracity, the Deputy Supervisor of the Civil Division for the Sheriff and his Civil Deputy Clerk testified that they mistakenly believed that Mr. Henrich, who is an attorney, was representing Chase at the sale. When Mr. Henrich returned to pay for the property and to have title issued to,him, the error was discovered.

      . Mr. Henrich also filed a Peremptory Exception of No Cause of Action and No Right of Action.

      . The trial court also denied Mr. Henrich’s Exception of No Cause of Action and No Right of Action. The trial court’s rulings on those exceptions are not before this court on appeal.


author: GREMILLION, Judge.

text:
    KITE BROS. LLC v. KITE RV, LLC, et al.
    No. 14-374.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    Kenneth M. Wright, Attorney at Law,. Lake Charles, LA, for Defendants/Appellants: Alan Kite Kite RV, LLC.
    Scott J. Scofield, Scofield, Gerard, Poho-relsky, Gallaugher & Landry, Lake Charles, LA, for Plaintiff/Appellee: Kite Bros. LLC.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

_JjPlaintiff/appellee, Kite Bros., LLC, has answered this now-dismissed appeal and prayed for damages, including attorney fees, against defendant/appellant, Alan Kite. For the reasons that follow, we render judgment denying same.

Kite Bros., LLC, filed suit in Beauregard Parish for money damages and recognition of a vendor’s lien. Kite RV, LLC, is alleged to be in liquidation; thus, Kite Bros, also sued the liquidator, Alan Kite. The two defendants filed separate exceptions of improper venue and lis pendens. The trial court denied both exceptions. From the denial of their exception of improper venue, defendants perfected an appeal and sought supervisory writs. This court, sua sponte, ordered defendants to show cause why their appeal should not be dismissed as improperly sought from an interlocutory judgment. The appeal was dismissed. Kite Bros., LLC v. Kite RV, LLC, 14-374 (La.App. 3 Cir. 5/28/14), 2014 WL 2442369, (unpublished).

Uniform Rules — Courts of Appeal, Rule 2-19 provides, “The court may award damages for frivolous appeal in civil cases as provided by law.” Those damages are provided by law in La.Code Civ.P. art. 2164, and those damages may include attorney fees. An appellee seeking those damages must demand them in an answer to the appeal. La.Code Civ.P. art. 2133.

Appeals are favored; thus, appellate courts are reluctant to impose damages for frivolous appeal. Moffett v. Mof-fett, 10-1364 (La.App. 3 Cir. 6/22/11), 67 So.3d 1287. Regarding the award of damages for frivolous appeal, this court has enunciated the following test:

Louisiana Code of Civil Procedure Article 2164 provides for an award of damages for frivolous appeal. If the court feels that counsel for the appellant does not seriously advocate the position taken or that the appeal was filed solely for dilatory purposes, then damages for frivolous appeal are appropriate. Gallien v. Winn-Dixie, 96-832 |2(La.App. 3 Cir. 12/11/96), 685 So.2d 531 (citing Hampton v. Greenfield, 618 So.2d 859 (La.1993)); Doe v. Roman Catholic Church, 94-1476 (La.App. 3 Cir. 5/3/95), 656 So.2d 5, unit denied, 95-2076 (La.11/13/95), 662 So.2d 478. However, if even the slightest justification is found for the appeal, and even if the appellant does not prevail on appeal, damages will not be awarded. Hawkins v. City of Jennings, 97-1291 (La.App. 3 Cir. 3/6/98), 709 So.2d 292.

Moraus v. Frederick, 05-429, pp 9-10 (La.App. 3 Cir. 11/2/05), 916 So.2d 474, 481-82.

An interlocutory judgment may be appealed if, as a practical matter, it cannot be corrected on appeal, i.e., it causes irreparable injury. Bennett v. Arkansas Blue Cross Blue Shield, 05-1714 (La.App. 1 Cir. 9/15/06), 943 So.2d 1124. In their argument in response to the motion to dismiss, defendants cited legal authority for the proposition that the denial of an exception to venue is an appealable interlocutory judgment. See Patterson v. Alexander & Hamilton, Inc., 02-1230 (La.App. 1 Cir. 4/2/03), 844 So.2d 412. We also note that defendants filed an application for supervisory writs with this court, which was denied. Kite Bros., LLC v. Kite RV, LLC, 14-16 (La.App. 3 Cir. 1/16/14) (unpublished).

The fact that defendants did not prevail in the motion to dismiss does not render their appeal frivolous. This must be the case when defendants supported their position that appeal was appropriate with relevant jurisprudential authority. The fact that defendants also filed an application for supervisory writs demonstrates that defendants were attempting to cover their bases in the event that the court determined that the matter was an appeal-able judgment.

The demand of plaintiff/appellee, Kite Bros., LLC, for damages, including attorney fees, is denied.

ANSWER TO APPEAL DENIED.


text:
    GOAL PROPERTIES, INC. v. Janet Craig PRESTRIDGE, et al.
    No. 14-422.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Gregory Engelsman Bolen, Parker, Brenner, Lee & Engelsman, Ltd., Alexan-dría, LA, for Plaintiff/Appellant: Goal Properties, Inc.
    Brian K. Thompson, Law Offices of Brian K. Thompson, APLC, Alexandria, LA, for Defendants/Appellees: Janet Craig Prestridge Joan Craig Sonnier James Robert Craig.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN E. CONERY, Judges.
   AMY, Judge.

11The parties to this lawsuit own adjoining parcels of real property. A dispute arose as to the ownership of portions of the property and this action followed. At the hearing, the trial court found that the defendants’ reconventional demand was a possessory action and heard the matter as a possessory action. Thereafter, the trial court granted the defendants’ possessory action to the extent of their claimed and maintained boundaries as evidenced at the hearing. The plaintiff appeals. For the following reasons, we dismiss the appeal and remand to the trial court for further proceedings.

Factual and Procedural Background

The plaintiff, Goal Properties, Inc., purchased a parcel of land in Section 7, T2N-R2E, along the Red River in Rapides Parish. The defendants, Janet Craig Pres-tridge, Joan Craig Sonnier, and James Robert Craig, own land to the east or southeast of Goal’s parcel. According to the record, after Goal purchased the property, a dispute arose as to the extent of Goal’s holdings on its eastern boundary. The record indicates that the dispute was precipitated when the defendants began constructing a new fence on what Goal considered its property. Goal contends that it owns 143.94 acres, bounded on the north by Section 33 and extending to the border of Section 6 on the east. Goal also contends that its southern/southeastern boundary with the defendants corresponds with an old fence, which is also shown on a 1971 survey made by Barrett Gremillion. The defendants |2contend that the 1971 Gremillion survey incorrectly placed their boundary with Goal 160 feet east of the actual boundary, more or less, and that their property runs all the way to the Section 7/Section 33 border. In support of this contention, they note that Goal’s original property description was for a significantly smaller amount — 97 acres, more or less — than what Goal claims.

Goal filed a possessory action, asserting that it possessed the contested property by mowing, bush-hogging, and recreational use. The defendants filed a reconventional demand, initially asserting that the property has “always been in the possession of the ancestors in title of the [defendants] for the past 75 years and as such they are entitled to be recognized as the legal owners of the disputed portion.” At trial, Goal argued that the defendants’ reconventional demand had converted its possessory action into a petitory action, and that the burden of proof had shifted to the defendants. The trial court rejected that argument, finding that the matter remained a possessory action. After hearing the evidence and testimony, the trial court found in favor of the defendants, determining that they possessed the property to the boundaries claimed in court. Thereafter, the trial court entered judgment granting the defendants’ possessory action and denying Goal’s possessory action. The trial court also granted Goal a period of time in which to file a petitory action.

Goal appeals, asserting that:
1. The trial court erred by allowing the defendant/plaintiff in reconvention to try the case as a possessory action, as opposed to a petitory action, as set forth in the original and first supplemental and amending reconventional demands.
2. The trial court’s judgment awarding possession to the Craig heirs was erroneous when they had confessed the possession of Goal properties with their re-conventional petitory action.
|s3. If the court determines that the matter was not converted to a petitory action, and that trying the case as a possessory action was appropriate, the possessory action of the Craig heirs was clearly not supported by the testimony and was prescribed.
4. Plaintiffs testimony clearly proved that he possessed the property in excess of a year without interruption from the Craig heirs.
5. The court erred in finding possession by the Craig heirs when none of them actually possessed any of the property.

Discussion

Although Goal assigns multiple errors concerning the classification of the defendants/plaintiffs-in-reconvention’s action, the trial court’s findings of fact, and issues of prescription, we find that the trial court’s judgment does not satisfy the requirements of a final judgment and thus do not reach the merits of Goal’s assignments of error.

An appeal can be dismissed at any time for lack of jurisdiction of the appellate court, and the appellate court has an independent duty to consider whether it has subject matter jurisdiction over a matter. La.Code Civ.P. art. 2162; Kimsey v. Nat’l Auto. Ins. Co., 13-856 (La.App. 3 Cir. 2/12/14), — So.3d —. Unless appellate jurisdiction is properly invoked by a valid final judgment, the appellate court cannot determine the merits of an appeal. Creighton, Richards & Higdon, L.L.C. v. Richards Clearview, L.L.C., 09-247, 09-685 (La.App. 5 Cir. 10/29/09), 28 So.3d 391; La.Code Civ.P. art. 2083.

“A judgment that determines the merits in whole or in part is a final judgment.” La.Code Civ.P. art. 1841. A judgment must be precise, definite, and certain. Kimsey, — So.3d —; La.Code Civ.P. art. 1918, comment (a). In order to constitute a final appealable judgment, the “judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the |4party against whom the ruling is ordered, and the relief that is granted or denied.” Frank v. City of Eunice, 13-1118, p. 3 (La.App. 3 Cir. 3/5/14), 134 So.3d 222, 225. These requirements should be evident without reference to other documents in the record. Id.

Further, we find it instructive that “[a]ll final judgments which affect title to immovable property shall describe the immovable property affected with particularity.” La.Code Civ.P. art. 1919. See also La.Code Civ.P. art. 2089. The purpose of these articles is “to insure that the public in general, and title examiners, successful litigants, officials charged with executions of judgments and surveyors in particular, can accurately deal with the immovable property.” Hurst v. Ricard, 558 So.2d 1269, 1272 (La.App. 1 Cir.), writ denied, 559 So.2d 1378 (La.1990). However, the failure to describe the property does not nullify the judgment rendered. Fields v. Etheridge, 487 So.2d 551 (La.App. 4 Cir.1986). Additionally, in some cases where the record is sufficient such that the property’s description is apparent from the record, the appellate courts have addressed the merits of the case and amended the judgment to include the description. Id.; George M. Murrell Planting & Mfg. Co. v. Dennis, 06-1341 (La.App. 1 Cir. 9/21/07), 970 So.2d 1075. In other instances where the property’s description is apparent from the record, the appellate court has determined the merits of the matter and remanded for reformation of the judgment to comply with Article 1919. Young v. Tolintino, 44,631 (La.App. 2 Cir. 12/2/09), 26 So.3d 835, writ denied, 10-5 (La.4/9/10), 31 So.3d 391; Acadian Gas Pipeline Sys. v. Bourgeois, 04-578 (La.App. 5 Cir. 11/30/04), 890 So.2d 634, unit denied, 04-3203 (La.3/11/05), 896 So.2d 69.

l5In its judgment, the trial court “ORDERED, ADJUDGED AND DECREED that the possessory action filed by [the defendants] is hereby granted to the extent of their claimed and maintained boundaries as evidence[d] in court.” This judgment is neither precise, certain, nor definite. Further, it requires reference to other evidence in the record. Additionally, we note that the record in this case is insufficient for this court to amend the judgment to include a particular description of the property claimed by the defendants. As stated by a panel of this court in Copellar v. Yount, 344 So.2d 1114, 1115 (La.App. 3 Cir.1977):

As so often happens with parties familiar with a parcel of land in question, the parties who testified in this case appeared to understand one another and no doubt the court and counsel did. However, their testimony as it is recorded does not permit the fixing of boundaries, corners, physical monuments or other landmarks necessary to frame an accurate legal description of the tract affected by the trial court’s judgment. In short, the parties may know where the disputed land is and where its boundaries are, but no title examiner or surveyor could locate it from the transcript of the trial testimony, even with the aid of the photographic exhibits.

In light of the indeterminate nature of the judgment, we find that subject matter jurisdiction is lacking for consideration of this matter as an appeal. Accordingly, we find it appropriate to dismiss the appeal and remand for further proceedings consistent with, this opinion.

DECREE

For the foregoing reasons, we dismiss the appeal and remand for further proceedings. Costs of this appeal are assessed to the appellant, Goal Properties, Inc.

APPEAL DISMISSED AND REMANDED.

      . Goal is also referred to as “Goal Properties, LLC” in the record.

      . The total acreage of Goal’s alleged property is also referred to as ‘'142.83 acres.” Our review of the record reveals two different versions of a survey of Goal’s property completed by Frank Willis, one dated January 23, 2007, for 142.83 acres and one dated April 20, 2007, for 143.94 acres. Mr. Willis' testimony indicated that he performed preliminary work in early 2007, but that the survey was not finalized until April 20, 2007.

      . La.Code Civ.P. art.2089 states "[a]ll judgments and decrees which affect title to immovable property shall describe with particularity the immovable property affected."


text:
    Latoya CASTILLE, Individually v. LOUISIANA MEDICAL MUTUAL INS. CO., et al.
    No. 14-519.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Marc W. Judice, Judice & Adley, Lafayette, LA. for Defendants/Appellees — G. Vincent Bailey, M.D. and Bailey & Elias Obstetrical Care, L.L.C.
    Charles Henry Munsterman, Alexandria, LA, for Plaintiff/Appellant — Latoya Cas-tille, Individually.
    Rene Joseph Pfefferle, Watson, Blanche, Wilson & Posner, Baton Rouge, LA, for Defendants/Appellees — Louisiana Medical Mutual Ins. Co. and Jennings American Legion Hospital.
    Jordan Z. Taylor, Townsley Law Firm, Lake Charles, LA, for Plaintiff/Appellant — Latoya Castille, Individually.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

bin this medical malpractice case, Latoya Castille appeals the trial court’s grant of several medical providers’ peremptory exceptions of no cause of action as to her claim for bystander damages under La. Civ.Code art. 2315.6. Defendants filed the exceptions in response to Ms. Castille’s petition for damages contending their negligence in prenatal care and delivery of her infant caused the infant’s harm and eventual death. In her petition, Ms. Castille sought wrongful death, survival, bystander, and incidental damages. On appeal, Ms. Castille claims the wrongful death, survival, and bystander claims constitute one cause of action so that partial judgment as to only her bystander claim was improper. She further asserts her petition set forth a valid bystander claim. Because we find that Ms. Castille’s petition fails to state a cause of action for bystander relief but that factual deficiencies in the petition warrant its amendment, we affirm and remand.

I.

ISSUES

We must determine:
(1) whether a claim for bystander damages under La.Civ.Code art. 2315.6 is an independent cause of action; and
(2) whether Ms. Castille’s petition set forth sufficient facts to establish a cause of action for bystander damages.

II.

FACTS AND PROCEDURAL HISTORY

Latoya Castille is a former obstetrics patient of the Bailey-Elias OB Clinic, where she received prenatal care by Dr. G. Vincent Bailey. Dr. Bailey also 12delivered her infant, with the assistance of the nursing staff at Jennings American Legion Hospital (JALH), where Ms. Castille was admitted for induction of a vaginal delivery. Complications arose during birth, and while the infant survived delivery, she emerged weak and unresponsive. The infant required emergency resuscitation and subsequent transfer to a different hospital for treatment. She died thirty-six days after birth.

. Thereafter, Ms. Castille filed suit against Louisiana Medical Mutual Insurance Company, Bailey & Elias Obstetrical Care, L.L.C., Dr. Bailey, and JALH alleging that their negligence in prenatal care and delivery of her infant caused her injury and the infant’s eventual death. In her petition for damages, Ms. Castille sought relief for her infant’s wrongful death and pre-death suffering, her own severe emotional stress, and negligent infliction of emotional distress, among other things. Bailey & Elias Obstetrical Care, L.L.C. and Dr. Bailey answered, denying liability and filing a peremptory exception of no cause of action as to her claims for relief under La.Civ.Code art. 2815.6. JALH filed an exception of no cause of action on the same grounds.

The trial court granted the exception of Bailey & Elias Obstetrical Care, L.L.C. and Dr. Bailey. After a subsequent hearing, the trial court also granted the exception filed by JALH. In its written reasons for both judgments, the trial court stated that Ms. Castille had failed to state a cause of action for bystander damages under La.Civ.Code art. 2315.6. Both judgments were designated as final. Ms. Castille now appeals.

_b.ni.

STANDARD OF REVIEW

Questions of law are reviewed by the appellate court under the de novo standard of review. Land v. Vidrine, 10-1342 (La.3/15/11), 62 So.3d 36. An exception of no cause of action raises a question of law; therefore, a trial court’s judgment relating to an exception is reviewed by the appellate court de novo. Ramey v. DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs favor, the petition states a valid cause of action for the requested relief. Id.

IV.

LAW AND DISCUSSION

Whether Bystander Claim is Independent Cause of Action

Ms. Castille contends the trial court erred in granting defendants’ exceptions of no cause of action as to only her bystander claim because the claim was not an independent cause of action. It was, therefore, improperly dismissed by a partial judgment. We disagree and find that a claim for bystander damages under La. Civ.Code art. 2315.6 is an independent cause of action.

A partial judgment on an exception of no cause of action should not be rendered to dismiss only one theory of recovery out of several within a single cause of action. Everything on Wheels Subaru, Inc. v. Subaru -S., Inc., 616 So.2d 1234 (La.1993). However, a partial judgment on an exception of no cause of action may be rendered to dismiss one of several separate causes of action. Id. In determining whether a claim can be properly dismissed through an exception of no |4cause of action, then, it is necessary to determine whether that claim is an alternate theory of recovery or an independent cause of action.

The narrower question in the present case is whether a claim for bystander damages under La.Civ.Code art. 2315.6 is an independent cause of action. Ms. Cas-tille asserts that her bystander, wrongful death, and survival claims are alternate theories of recovery for one underlying cause of action. However, it is well-settled that a survival action and wrongful death action are two separate causes of action. Watkins v. Exxon Mobil Corp., 13-1545 (La.5/7/14), 145 So.3d 237. Although both arise from a common tort, they are separate causes of action because they arise at a different time and compensate different injuries. . Id. The distinction between the two actions is further evidenced by the legislature’s decision to separate the actions into different Civil Code articles. Id.

A claim for bystander damages is also a separate cause of action. Like a wrongful death and survival claim, a bystander claim is provided for in a separate article. See La.Civ.Code art. 2315.6. Moreover, a .bystander claim arises at a different time than a survival and wrongful death claim. A survival action arises simultaneously with the commission of the tort against the direct victim and is transmitted to the beneficiaries upon the victim’s death. Guidry v. Theriot, 377 So.2d 319 (La.1979), repudiated on different grounds in Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983). A wrongful death action arises when the victim dies. Id. Distinct from both actions is the bystander claim, which arises' when a person observes an injury-causing event or soon after comes upon the scene of an injury and is contemporaneously aware that the event has caused severe harm to the direct victim. Trahan v. McManus, 97-1224 (La.3/2/99), 728 So.2d 1273. Further, a bystander claim compensates different injuries than a wrongful death and survival faction. A survival claim compensates the direct victim for damages suffered from the time of injury until death. Guidry, 377 So.2d 319. A wrongful death claim compensates the beneficiaries for their own damages suffered from the moment of the direct victim’s death and thereafter. Id. Distinct from both actions is the bystander claim, which compensates the bystander for the immediate shock of witnessing a traumatic event which caused the direct victim severe and apparent harm. Trahan, 728 So.2d 1273. Thus, by the same jurisprudential logic by which a wrongful death and survival claim are separate causes of action, a bystander claim is also a separate cause of action.

Ms. Castille correctly defines a cause of action as “the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant.” Everything On Wheels Subaru, Inc., 616 So.2d at 1238. She incorrectly concludes, however, that her wrongful death, survival, and bystander claims constitute one cause of action merely because they share the operative fact of defendants’ alleged negligence. The inherently different nature of the claims, as discussed above, necessarily indicates that different operative facts give rise to the right to assert each. In particular, the facts that give rise to a bystander claim are distinct from those that give rise to a wrongful death and survival action. For instance, wrongful death and survival actions are premised on the direct victim’s death, but “a bystander action has no necessary relationship to a death.” Wartelle v. Women’s & Children’s Hosp., Inc., 97-744 (La.12/2/97), 704 So.2d 778, 784-85. Moreover, a bystander action requires facts demonstrating, that a bystander observed an injury-causing event or the scene soon after, experienced contemporaneous awareness of severe harm to the direct victim, and suffered severe, foreseeable emotional distress. Trahan, 728 So.2d 1273; See also | ^La.Civ.Code art. 2315.6. These operative facts do not give rise to a right to assert either a wrongful death action or survival action. See La.Civ.Code art. 2315.1 and 2315.2. As such, the distinct operative facts giving rise to the right to assert a bystander claim render it a distinct cause of action.

In light of the foregoing, we find that a claim for bystander damages under La. Civ.Code art. 2315. 6 is an independent cause of action. As such, a bystander claim can be properly dismissed by a partial judgment on an exception of no cause of action. Ms. Castille’s first contention is without merit.

De Novo Review of Bystander Claim

Ms. Castille contends the trial court erred in granting defendants’ exceptions of no cause of action for bystander relief because her petition made out a valid claim. We disagree. However, we find that factual gaps in Ms. Castille’s petition warrant its amendment and remand for the trial court'to assess whether a cause of action exists given a fuller account of what occurred.

In conducting a de novo review of an exception of no cause of action, the reviewing court is limited to the plaintiffs petition and accepts the well-pleaded allegations of fact as true. Ramey, 869 So.2d 114. It is not necessary for a plaintiff to plead the theory of her case; however, mere conclusions unsupported by facts do not establish a cause of action. Id. Ultimately, the court must determine whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Id.

The relief sought in the present case is recovery of bystander damages under La.Civ.Code art. 2315.6. To recover under this article, a plaintiff must show that: (1) they viewed the event causing injury to the direct victim or came upon the 17scene soon after; (2) the direct victim suffered such harm that it can reasonably be expected that the plaintiff would suffer serious mental anguish from the experience; (3) the emotional distress plaintiff sustained is both serious and reasonably foreseeable; and (4) plaintiff and the direct victim have the requisite familial relationship. Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990); See also La.Civ. Code art. 2315.6. Additionally, a plaintiff must show that as they witnessed the injury-causing event, or the scene of injury soon after, they were contemporaneously aware that the event had caused harm to the victim. -Trahan, 728 So.2d 1273.

Applying the legal principles set forth above and accepting all of the allegations in plaintiffs petition as true, we find Ms. Castille’s petition fails to state a cause of action for bystander damages. A key element for recovery under La.Civ.Code art. 2315.6 is the bystander’s personal observation of injury, or scene soon after, and contemporaneous awareness of injury to the direct victim. Trahan, 728 So.2d 1273. However, Ms. Castille’s petition is silent as to what she personally observed or was aware of in terms of the infant’s condition during and immediately after the allegedly negligent delivery. Instead, her petition remarks, in general terms, on the infant’s condition after birth. The petition states the infant emerged “limp, apneic, cyanotic,” with no indication of whether these are Ms. Castille’s personal observations and, if so, the immediate impact of such observations. Further, without any facts describing Ms. Castille’s observations or awareness of harm to her infant, it is hard to gauge the severity or foreseeability of any resulting emotional distress, another key element of a bystander claim. The lack of particular facts describing what Ms. Cas-tille viewed, what harm, if any, she was aware of to her infant, and what distress, if any, this awareness caused her |8during and immediately after delivery prevents this court from finding she established a cause of action for bystander damages under La.Civ.Code 2315.6.

While Ms. Castille’s petition, as it stands, does not assert a cause of action for bystander damages, it is not beyond repair. Louisiana Code of Civil Procedure Article 934 states that “when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” The article further provides that if the grounds of the objection cannot be removed by amendment, the action shall be dismissed. Id. Among the grounds of defendants’ objections are the aforementioned deficiencies in Ms. Cas-tille’s petition, namely the lack of facts establishing severe, foreseeable mental distress and personal observation of injury. Because the petition does not negate the possibility of a viable bystander claim, but rather, lacks certain relevant facts, we are not prepared to find as a matter of law that the basis for defendants’ objections cannot be removed by amendment of the petition. We will allow Ms. Castille to amend her petition, if she is legitimately able, to remediate any factual deficiencies. In accordance with La.Code Civ.P. art. 934, we remand.

V.

CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed and defendants’ peremptory exceptions of no cause of action are sustained. The case is remanded to the district court to permit a remedial amendment of Ms. Castille’s petition in accordance with the views expressed herein. Ms. Castille is given thirty days from the date of the finality of this | (judgment to amend her petition. If she fails to amend her petition within the prescribed time, the district court shall dismiss her claim under La.Civ.Code art. 2315.6. Costs of the appeal are assessed equally against Ms. Castille and the defendants.

AFFIRMED AND REMANDED.