author: Judge Paula A. Brown

text:
    Joseph W. URQUHART v. Larry SPENCER, III, et al. c/w James Nye vs. Zurich American Inc. Co., Sysco New Orleans LLC & Larry A. Spencer Joseph W. Urquhart vs. Larry Spencer, III, Sysco Corp. and Zurich American Insurance Co. c/w James H. Nye v. Zurich American Inc., Co., Sysco New Orleans LLC & Larry A. Spencer Joseph W. Urquhart vs. Larry Spencer III, Sysco Corp., and Zurich American Insurance Co. c/w James H. Nye v. Zurich American Ins. Co, Sysco New Orleans LLC & Larry A. Spencer
    NO. 2017-CA-0069, NO. 2017-CA-0202, NO. 2017-CA-0203
    Court of Appeal of Louisiana, Fourth Circuit.
    07/27/2017

      Frank Ippolito, LAW OFFICES OF FRANK D. IPPOLITO, 700 West Judge Perez Drive, Suite 101, Chalmette, LA 70043—0428, Gregory J. Noto, NOTO LAW FIRM, 532 East Judge Perez Drive, Suite 102, Chalmette, LA 70043, COUNSEL FOR PLAINTIFF/APPELLEE/AP-PELLANT, JOSEPH W. URQUHART
    Paul E. Mayeaux, ROBERT L. MA-NARD, III, PLC D/B/A MANARD & MAYEAUX, Energy Centre, 1100 Poydras Street, Suite 2610, New Orleans, LA 70163, COUNSEL FOR PLAINTIFF/AP-PELLEE/APPELLANT, JAMES NYE
    Wade A. Langlois, III, Brittany A. Cooper, GAUDRY RANSON HIGGINS & GREMILLION, LLC, 401 Whitney Avenue, Suite 500, Oakwood Corporate Center, Gretna, LA 70056, COUNSEL FOR DEFENDANTS/APPELLANTS/APPEL-LEES, LARRY SPENCER, III, SYSCO FOOD SERVICES OF NEW ORLEANS & ZURICH AMERICAN INSURANCE COMPANY
    (Court composed of Judge Joy Cossich Lobrano, Judge Regina Bartholomew Woods, Judge Paula A. Brown)
   Judge Paula A. Brown

11 This is a tort suit. The defendants, Larry Spencer, III, Sysco Food Services Of New Orleans (“Sysco”) and Zurich, American Insurance Company, (collectively, the “Defendants”),- appeal the trial court’s finding of liability and award of damages in favor of the plaintiffs, Joseph W. Urquhart and James M. Nye (collectively, the “Plaintiffs”). Plaintiffs appeal the trial court’s damage awards, arguing the awards are abusively low. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Urquhart and Mr. Nye were involved in a motor vehicle accident with Mr. Spencer on May 9, 2012. Mr. Nye was the driver of the vehicle and Mr. Urquhart was his passenger. At the time of the accident, Mr. Spencer was within the course and scope of his employment with Sysco.

A judge trial in this matter was held on January 12, 13, and 14, 2015. At trial, Mr. Nye testified he was traveling westbound on E. Judge Perez Drive in Chalmette, Louisiana in the right lane of travel. At the same time, Mr. Spencer made a U-turn from the eastbound side of E. Judge Perez Drive, crossed into the |2right travel lane of the westbound side of West Judge Perez Drive traffic, and collided with Plaintiffs’ vehicle. Mr. Spencer was driving a tractor trailer.

Larry Straub, an acquaintance of Mr. Urquhart, witnessed the aceident. He testified that his vehicle and Plaintiffs’ vehicle were in the right-hand lane of travel- on E. Judge Perez Drive. Mr. Straub said he saw the vehicle driven by Mr. Spencer leave the left lane of travel, enter the right lane, and strike Plaintiffs’ vehicle.

Mr,' Spencer, on the other hand, testified he was- travelling eastbóund on E, Judge Perez-Drive and was making a-U-turn to' head westbound on E. Judge Perez Drive. When he initiated his U-turn, he saw Plaintiffs’ vehicle across the road in a parking lot. He testified that he waited in the median area to complete the U-turn; however, -as he swung into the roadway to complete his turn, Plaintiffs’ vehicle ran into the rear of his vehicle.

Both parties offered testimony from accident reconstruction experts. Plaintiffs’ expert, Raymond Burkhart, placed fault for the accident on Mr. Spencer, Mr. Burk-hart examined the accident scene, photographs of damage to each vehicle, and witness testimony, including the deposition of Mr, Spencer. He testified the physical damage to Mr. Nye’s vehicle was totally inconsistent with Mr. Spencer’s version of the accident. Mr. Burkhart opined that the accident was caused as a result of Mr. Spencer’s failure to check his right side view mirror before entering the right lane of travel, and Mr. Spencer’s failure to yield.

Contrarily, Defendants’ expert, Joseph Blaschke, concluded Mr.. Nye was at fault for the accident. In.reaching his conclusion, Mr. Blaschke relayed that he inspected Defendants’ vehicle, the accident site, reviewed photographs of Mr. Nye’s vehicle, and the deposition testimony of Mr. Urquhart, Mr. Spencer, the investigating police officer, Mr. Straub, and Mr. Burk-hart. Mr. Blaschke testified Uthat Mr. Spencer’s testimony was more consistent with how the accident occurred. Mr, Blaschke opined that Mr. Spencer entered the roadway first, and as Mr, Spencer moved into the right lane to complete his turn, Mr. Nye struck his vehicle, thereby causing the accident,

The medical records, bills and deposition testimony.of Mr, Urquhart were admitted into- evidence. The medical records showed Mr. Urquhart claimed injuries to his neck, back, knee, left elbow and left hip; had complaints of radiating pain; and required use of a walking cane for ambulation. Mr. Urquhart obtained conservative medical treatment for nearly a year and a half.

At trial, Logan Urquhart and Damien Urquhart, Mr. Urquhart’s' sons, testified on behalf of their father. Both admitted Mr. Urquhart’was disabled at the time of the-accident; however, they said he was active before the accident and became a “couch potato” after the accident. Each further testified that their father suffered on-going effects from the accident until his death. Mr. Urquhart’s medical expenses totaled $10,605.00.

Mr. Urquhart’s medical records, along with his deposition testimony, also showed he had more than a dozen heart attacks, three accidents, and complained of chronic back, neck, and hip pain before the May 2012 accident. He regularly visited' a pain management* clinic where he received pain medication in the months leading up to the May 2012 accident.'A medical report dated April 11, 2012, revealed Mr. Urquhart associated his pain with a 1980 work accident and described his pain as “disabling” and “unbearable.” -

14As to Mr. Nye, he testified he injured his neck and back in the May 2012 accident. He underwent multi-level back surgery in October 2012 and was later diagnosed with reflex sympathetic dystrophy (“RSD”). Mr. Nye acknowledged he had undergone two previous back surgeries in connection with a 2005 motor vehicular accident; however, he stated that he had mostly recovered and was relatively healthy and active until the present accident. He said he played basketball, golf, and had started working as a personal trainer in 2010. He testified that he had twenty-six' clients who paid him roughly $35.00 per session, Mr. Nye' further testified that his injuries from the May 2012 accident not only prevented him from working as a personal trainer, but also derailed his intent to return to work at Domino Sugar Refinery, his previous, employer.

' Mr. Nye’s sons, Tyler Nye and Hunter Nye, testified that Mr. Nye was active before the accident, had worked as personal trainer, and wanted to return to work. Likewise, Trent Diaz, a friend and former Domino co-worker, testified that Mr. Nye wanted to return to work at Domino.

Dr. Kenneth Vogel, Mr. Nye’s neurosurgeon, who also performed Mr. Nye’s back surgery in 2008, related Mr. Nye’s October 2012 multi-level back surgery to the May 2012 accident. He also testified that Mr. Nye’s RSD diagnosis was caused as.-a result of the May 2012 accident. Dr, Vogel recommended palliative medical treatment to deal with Mr. Nye’s on-going physical pain complaints.

Mr. Nye’s vocational rehabilitation expert, Bobby Robert's, testified that Mr. Nye could not return to work. He further testified that Mr. Nye might possibly | ^require a cervical antérior fusion. Mr. Roberts consulted with "Dr. Jonathan Thompson—a neuroscience pain specialist who had evaluated Mr. Nye—to develop a future medical needs costs treatment plan. The plan included Dr. Thompson’s recommendation that Mr. Nye’s future medical treatment consist of implantation of a spinal stimulator, psychological counseling, pain medication, physical therapy, MRIs, and attendant care. Mr. Roberts said the costs for these procedures amounted to $1,816,113.00. The parties stipulated to past medical expenses of $167,563.85.

Dr. Shael Wolfson, Mr. Nye’s expert economist, testified that Mr. Nye’s injuries, and his inability to return to work as a result of his injuries, resulted in lost wages and loss of wage earning capacity, totaling $841,728.00.

In addition to the May 2012 accident, the evidence revealed Mr. Nye’s medical history included four previous accidents— December 2005, June 2009, November 2010, and February 2012—and a subsequent motor vehicle accident on August 22, 2013. His medical records showed that he underwent a micro-discectomy in 2006 and a multi-level cage fusion in 2008.

. Mr. Nye treated with Dr. William Bath-erson, a chiropractor, for neck and back injuries resulting from the 2005, 2009, and the February and May 2012 accidents. Dr. Batherson testified that Mr. Nye’s May 20Í2 accident caused the most neurological damage to his lumbar spine. However, Dr. Batherson conceded that he referred Mr. Nye for a neurological consult for possible surgical intervention in 2010 and 2011, and that Mr. Nye did not tell him about his-subsequent August 2013 accident. His records also indicated that Mr. Nye’s low | (¡back pain and radicular symptoms had worsened after the February 2012 accident and that Mr. Nye had reported on-going low back, left leg, and left foot pain as recently as two days before the May 2012 accident.

The medical records of Dr. Steve Morris, III, a Mississippi pain specialist, were introduced into evidence. They showed Mr. Nye started monthly treatments with Dr. Morris in January 2009. Each month, Dr. Morris prescribed pain and anxiety prescriptions, such as Roxicodone, Soma 350, Xanax, and Ambien. On a scale of one to ten, Mr. Nye consistently described his pain level—both before and after the May 2012 accident—as a “four” with medication and a “ten” without medication.

On cross-examination, Dr. Vogel admitted that Mr. Nye had given him an incomplete medical history. He testified he was unaware that Mr. Nye had worked as a trainer and did not know about the amount of pain medication or level of pain complaints noted in Dr. Morris’ records. Dr. Vogel conceded he relied on Mr. Nye to give an accurate medical history in order for him to establish the causal connection between Mr. Nye’s May 2012 accident and his injury complaints. Nevertheless, based upon his treatment of Mr. Nye, Dr. Vogel testified that it was more probable than not that Mr. Nye’s 2012 back surgery and RSD diagnosis were related to the May 2012 accident.

Defendants’ vocational rehabilitation expert, Barney Hegwood, testified that he reviewed twenty-one different documents in reaching his assessment of Mr. Nye. They included: Dr. Batherson’s reports; the vocational evaluation report of Bobby Roberts; the medical reports of Dr. Thompson; the medical records of Dr. Vo-gel; the medical records of Dr. Steve Morris; the deposition and interrogatory l7responses of Mr. Nye; miscellaneous diagnostics, dated January 16, 2006 through October 30, 2012; medical records of various medical providers from 2005-2008; and a job description for machine attendant at Domino Sugar Refinery. Mr. Heg-wood also said he interviewed Mr. Nye. Based upon his interview and the documents he reviewed, Mr. Hegwood concluded that Mr. Nye was totally disabled before the May 2012 accident.

Defendants’ neurological surgeon expert, Dr. Najeeb Thomas, testified that he examined Mr. Nye on May 20, 2014. In addition, he relayed that he reviewed several documents, including medical records from Mr. Nye’s 2006 and 2008 back surgeries, Dr. Vogel’s medical records, and Dr. Morris’ medical records in reaching his medical expert opinion. Upon considering Mr. Nye’s physical examination, history of low back problems and previous surgeries, along with his prior medical records, Dr. Thomas opined that Mr. Nye had no new findings he could relate to the May 2012 accident.

Upon submission of the case, the trial court found Mr. Spencer 100% at fault for the accident. In its damages assessment, the trial court attributed 80% of Mr. Urquhart’s damages to the May 2012 accident. It awarded Mr. Urquhart’s estate $38,000.00 in damages. The amount included $30,000.00 in general damages and $8,000.00 in special damages.

As to Mr. Nye, the trial court found him totally disabled from work at the time of the accident and, therefore, disallowed all wage loss claims. It attributed 50% of his alleged non-RSD medical complaints and 100% of his RSD damages to the May 2012 accident. It awarded Mr. Nye $479,362.45 in damages, itemized as follows:

_k

$ 10,000.00 Past general damages

$ 10,000.00 Past RSD-related general damages

$ 50,000.00 Future general damages

$ 30,000.00 Future RSD-related general damages

$167,563.85 Past special medical damages

$211.798.60 Future Special medical damages

$479,362.45

The trial court denied Mr. Nye’s motion for new trial. These consolidated appeals followed.

DISCUSSION

Defendants contend that the trial court erred in finding Mr. Spencer 100% at fault and awarding the plaintiffs any damages. Plaintiffs contend the damages awards were abusively low. We divide our analysis into two parts: (I) allocation of fault and (II) damages.

I. ALLOCATION OF FAULT

This Court discussed the standard of review that governs appellate review of a trial court’s findings on the issue of liability and allocation of fault in Watson v. Hicks, as follows.

It is well-settled in our jurisprudence that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Ardoin v. Firestone Polymers, L.L.C., 10-0245 at p. 6 (La.1/19/11), 56 So.3d 215, 219. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. However, where ^documents or objective evidence so contradict the witness’ story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’ story, the court of appeal may find manifest error or clear wrongness, even in a finding purportedly based upon a credibility determination. Id. at 882; Rosell v. ESCO, 549 So.2d 840 (La. 1989).
The manifest error standard also governs this court’s review of the trial court’s findings regarding the allocation of fault. Beggs v. Harrah’s New Orleans Casino, 14-0725, pp. 13-14 (La.App. 4 Cir. 1/21/15), 158 So.3d 917, 925. The jurisprudence is well-settled that appellate courts are required to give great deference to the trial court’s allocation of fault and that “[o]nly after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award.” Fontenot v. Patterson Ins., 09-0669, p. 22 (La. 10/20/09), 23 So.3d 259, 274 (citing Clement v. Frey, 95-1119, 95-1163, p. 7 (La. 1/16/96), 666 So.2d 607, 610-11). The Supreme Court has analogized an appellate court’s allocation of fault after a finding of manifest error to an appellate review of quantum assessments. Clement, supra.

In Duncan v. Kansas City Southern Railway Co., 00-0066, pp. 10-11 (La. 10/30/00), 773 So.2d 670, 680-81, the Supreme Court summarized the standard of review applicable to allocation of fault determinations as follows:

This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded “the trier of. fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La. 1/16/96), 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id. Therefore, an appellate court should only disturb the trier of fact’s allocation of fault when it is clearly wrong or manifestly erroneous, Only after making a determination that the trier of fact’s | ^apportionment of fault is clearly wrong can an appellate court disturb the award,' and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Clement, 666 So.2d at 611; Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1977).

2015-0046, pp. 7-8 (La. App. 4 Cir. 5/27/15), 172 So.3d 655, 663-64.

Defendants contend the trial court erred in its allocation of fault because the physical evidence supports their driver’s version of the accident facts. They argue that Plaintiffs’, version of the accident is inconsistent with the physical evidence. In particular, Defendants note that Plaintiffs and Mr. Straub testified that the impact between Plaintiffs’ vehicle and the Sysco truck was in the middle of the trailer; whereas, both experts testified the collision occurred at the rear of the trailer. Plaintiffs'counter that their expert, Raymond Burkhart, concluded Defendants’ driver caused the accident when he made an improper lane change. Plaintiffs emphasize that, notwithstanding any alleged discrepancies regarding the location of the initial impact, they and their witness consistently testified the accident happened when Defendants’ tractor ’trailer moved from' the left lane to the right lane of travel, striking Plaintiffs’ vehicle.

As referenced in Watson v. Hicks, supra, our. jurisprudence has long established that an appellate court may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Moreover, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable fact inferences should not be disturbed on review, even, though the appellate court may feel its own evaluations and inferences are as reasonable. Rosell, 549 So.2d at 844.

In Here, the trial court accepted the testimony of Plaintiffs, their eyewitness, and their accident reconstruction expert. Based on that evidence, the trial court concluded that Mr. Spencer was the sole cause of the accident. We cannot conclude the trial court was manifestly erroneous in allocating 100% of the fault to Defendants. Accordingly, this assignment of error lacks merit.

We now turn to whether the trial court erred in its damages awards.-

II. DAMAGES

A. Defendants’ Contest of Causation and Award of Damages, to Plaintiffs

Defendants claim the damages award to Plaintiffs should be set aside because Plaintiffs did not prove their injuries resulted from the May 2012 accident. They argue Plaintiffs were already disabled from neck and back injuries and were receiving medical treatment in connection with those injuries. As to Mr. Urquhart, they argue that he treated for the same injuries before and after the accident, with essentially the same pain levels. Defendants maintain that Mr. Urquhart’s low quality of life complaints were related to his preexisting heart condition, not this accident. Similarly, as to Mr. Nye, they point to his two prior back surgeries and medical records, which showed his pain complaints were the same after the accident as before the accident.

The test for determining the causal relationship between the accident and a subsequent injury is whether the plaintiff provided sufficient proof that more probably than not, the accident caused the subsequent injuries. Frost v. Carter, 2013-0375, pp. 7-8 (La. App. 4 Cir. 4/2/14), 140 So.3d 59, 64. The record supports Defendants’ position 'that Plaintiffs suffered from pre-existing disabilities that required active medical treatment at the time of the May 2012 accident. Louisiana jurisprudence, however, is well-settled that a defendant “takes his victim 112as he finds him” and is responsible for all natural and probable consequences of his negligent conduct. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La. 1993). Thus, when a defendant’s tortious conduct aggravates a preexisting condition, the defendant must compensate the victim to the full extent of the aggravation. Id. at 1006. This principle also requires the plaintiff to establish a causal link between the tortious conduct and the aggravation of his preexisting medical condition. Logan v. Brink’s, Inc., 2009-0001, p. 10 (La. App. 4 Cir. 7/1/09), 16 So.3d 530, 539.

The record does not support Defendants’ contention that Plaintiffs failed to prove any causal connection between their alleged injuries and the May 2012 accident. As to Mr. Urquhart, medical reports were introduced from Ochsner Medical Center, Dr. Batherson, and Dr. Robert C. McMyne, Jr., that attributed his low back pain complaints to the May 2012 accident. In the case of Mr. Nye, Dr. Vogel testified that Mr. Nye’s 2012 multi-level back surgery and his RSD diagnosis resulted from the May 2012 accident. Dr. Batherson also testified that he noticed some new symptoms in Mr. Nye’s left lower extremity and that Mr. Nye felt worse after the May 2012 accident. Along with the testimony of their respective treating physicians, Plaintiffs also offered supporting testimony from family members and friends to establish they sustained injuries from the May 2012 accident.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-dearly wrong standard demands great deference to the trier of fact; for'only the fact finder can be aware of the variations in demeanor and tone of voice that bears so heavily on the listener’s understanding and belief in what is said. Rosell, supra. Our review of the evidence shows the trial court | ^carefully weighed Plaintiffs’ complete medical records, considered their preexisting injuries, and evaluated the credibility of witness testimony in arriving at its determination of damages. The record supports the trial court’s award of damages to Plaintiffs. As this Court finds no manifest error in that decision, we now consider Plaintiffs’ claims that their damages awards were abusively low.

B. Plaintiffs’ Contest to the Amount of Damages Awarded

Our Louisiana jurisprudence is well-settled that the trier-of-fact (here, the trial judge) is given great discretion in its assessment of quantum, both general and special damages. Guillory v. Lee, 2009-0075, p. 14 (La. 6/26/09), 16 So.3d 1104, 1116. When the trier of fact awards general damages and the plaintiff alleges those damages are inadequate, the “abuse of discretion” standard applies. The “abuse of discretion standard” is both hard to articulate and necessarily “non-specific.” Cone v. National Emergency Services, Inc., 1999-0934 (La. 10/29/99), 747 So.2d 1085, 1089 (citing Youn v. Maritime Overseas Corp, 623 So.2d 1257 (La. 1993)). In reviewing a general damages award, an appellate court’s initial inquiry is whether the particular effects of the particular injuries on the particular plaintiff are such that there has been an abuse of the “much discretion” vested in the trier of fact. Youn, 623 So.2d at 1260. The rationale behind the application of the “much discretion” standard in review of general damage awards is that “awards of general damages, at least as to the amount awarded for injuries proved to have been caused by the tort, cannot be calculated with mathematical certainty.” Guillory v. Insurance Co. of North America, 1996-1084 (La. 4/8/97), 692 So.2d 1029, 1036 (Lemmon, J., concurring) (citing Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968)). As such, general dam ages awards are necessarily reviewed under the “much discretion” standard articulated in La. C.C. art. 1999. Id.

Because reasonable persons frequently disagree about the measure of general damages, such an award may be disturbed on appeal only when “the 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 ...” Youn, 623 So.2d at 1261. Each case is different; the particular effects of the particular injury on the particular plaintiff must be considered. Id. Consideration of prior awards to determine whether a judgment is abusively low or excessively high is only appropriate after the appellate court has determined that an abuse of discretion has occurred. Cone, 1999-0934 at p. 8, 747 So.2d at 1089.

In contrast, special damages are those which have a “ready market value,” such that the amount of damages theoretically may be determined with relative certainty, including medical expenses and lost wages. Guillory, 2009-0075 at p. 16 So.3d at 1117. In determining whether to set aside a special damages award, an appellate court must engage in a two-step process: in reviewing the entirety of the record, the appellate court (1) must find no reasonable factual basis for the trial court’s conclusions and (2) the findings must be clearly wrong. Id., 2009-0075 at p. 16, 16 So.3d at 1118.

Mr. Urquhart’s General Damages Award

The Urquharts do not contend that the trial court abused its vast discretion in relating only 80% of Mr. Urquhart’s injuries to the accident; rather, they contend hsthe trial court abused its discretion in the amount of damages awarded. Plaintiffs argue the general damages award of $30,000 to Mr. Urquhart was abusively low. In support, they emphasize that plaintiffs with injuries and treatment periods similar to Mr. Urquhart’s have been awarded $3,500.00 to $4,000.00 per month. As such, they seek to increase their general damages award from $30,000.00 to $66,000.00.

As previously discussed, the appellate standard of review in determining whether a general damages award is adequate is not based on the damages awarded to similarly injured plaintiffs, but rather whether the trial court abused its discretion in the damages awarded to the particular plaintiff based on the peculiar facts of the case. Youn, supra. Here, the record shows the trial court carefully considered Mr. Urquhart’s complete medical history and the testimony of his sons. The trial court weighed the credibility of the witnesses and found that Mr. Urquhart, although disabled before the May 2012 accident, sustained an aggravation to his preexisting condition. The record simply does not support the Urquharts’ claim that the general damages award to Mr. Urquhart was below that for which a reasonable fact finder could assess. As such, we find the general damages award to Mr. Urquhart was not abusively low so as to amount to an abuse of the trial court’s discretion.

Mr. Nye’s Damages Award

Mr. Nye argues the trial court erred in its general damages award of $100,000.00, which included $60,000.00 for non-RSD damages and $40,000.00 in RSD damages. He claims the trial court should have awarded him $2.5 million dollars, an amount which encompasses $750,000.00 for his multi-level back surgery; $750,000.00 for cervical disc herniation with recommended future anterior cervical fusion surgery; and $1,000,000.00 for his RSD diagnosis. Mr. hr,Nye also alleges the trial court erred in its special damages award of $211,798.60 for future special medical damages and in failing to award damages for lost wages and loss of earning capacity. Mr. Nye asserts he should have been awarded $841,728.00 in past and future loss wages; $1,816,113.00 in future medical expenses; and $62,500.00 for the costs of a future anterior cervical fusion.

With reference to his general damages claim, Mr. Nye suggests the award of $100,000.00 was abusively low in part because it did not include an amount for his cervical disc herniation diagnosis and accompanying claim for a future anterior cervical fusion. We shall first address that claim before we consider whether the overall general damages award was inadequate.

Mr. Nye contends the record is “uneon-troverted” that Dr. Vogel, Mr. Roberts and Dr. Thompson concluded his cervical disc injury would require surgery and was related to the May 2012 collision. The record, however, does not support his contention that there was “uncontroverted” cervical surgery recommendation. Dr. Vogel testified that Mr. Nye’s MRI of the cervical spine “simply revealed small bulges at C4-5, 5-6, and 6-7.” He further testified that the issue of an anterior cervical fusion was still “pending” and surgery depended on whether or not Mr. Nye’s pain became “intractable.” Mr. Roberts, who admittedly is not a physician, testified an anterior cervical fusion “potentially” could be required. Moreover, there was not a definitive cervical surgery recommendation in Dr. Thompson’s medical records. Rather, the records showed Dr. Thompson recommended palliative care, which consisted of radio frequency ablations, epidural steroid injections, and a spinal stimulator for Mr. Nye’s pain complaints.

117Mr. Nye testified he did have some symptoms with his neck and shoulders after the May 2012 accident; but, it was “nothing like [his] back and leg.” Mr. Nye never testified that he intended to undergo neck surgery after the May 2012 accident. However, Mr. Nye did testify he was willing to receive the palliative care as recommended by Dr. Vogel and Dr. Thompson for his pain, which he described as intractable before the May 2012 accident. Furthermore, Defendants’ physician, Dr. Thomas, controverted Mr. Nye’s claim of. any new injuries.

The record shows the trial court divided Mr. Nye’s general damages into-non-RSD and RSD damages. Whether the non-RSD damages award included an amount for Mr. Nye’s bulging cervical disc is unclear. Because no special damages were awarded for a cervical fusion, we can surmise that the trial court did not award general damages for the procedure. Generally, when a judgment is silent as to a claim or demand before- the court, the relief is deemed to have been rejected or denied. M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371, p. 12 (La. 7/1/08), 998 So.2d 16, 26.

The testimony revealed Mr, Nye had multiple accidents before the May 2012 accident, for which he was prescribed medication for his shoulder and back. He, on. multiple occasions with different doctors, failed -to relay an accurate history regarding his prior accidents, injuries, and medical treatment. Based on these factors alone, the trial court could have reasonably rejected Mr. Nye’s claim that he sustained neck injuries as a result of the present accident. Even assuming his cervical injury was not rejected by the trial court, Mr. Nye failed to introduce evidence that an anterior cervical fusion was more probably than not either required or recommended as a result of the May 2012 accident, See Frost, 2013-0375 at pp. 7-8, 140 So.3d at 64. The trial court made a reasonable evaluation of credibility which this Court declines to disturb upon review. See Rosell, supra.

Mr. Nye next contends that the remaining general damages award was inadequate, notwithstanding the exclusion of any award associated with his alleged cervical disc complaints. Mr. Nye argues an award of $100,000.00 is abusively low inasmuch as his medical providers related his multi-level back surgery and his RSD diagnosis to the accident. We disagree.

The trial court found Defendants liable for 100% of Mr. Nye’s RSD damages and only 50% of Mr. Nye’s non-RSD pain complaints. The trial court considered that Mr. Nye was already disabled; he reported the same intensity of pain complaints immediately before the May 2012 accident; and he received the same level of pain and anxiety medications before the accident as he did after the accident. These findings support the trial court’s attributing only a portion of his injuries to the accident, and limiting Mr. Nye’s “pain and suffering” general damages award to $120,000.00, re-' duced to $60,000,00 for his non-RSD related injuries and $40,000.00 for his RSD-related injuries to the accident, for a total combined general damages award of $100,000.00. Based upon the evidence, we eannot say that the trial court was unreasonable in its assessment of general damages or abused its discretion in its general damages award.

Similarly, we find no abuse of the trial court’s discretion in its special damages awards. As to Mr. Nye’s lost wage claims, the trial court found that he was disabled and unlikely to return to work at the time of the accident. While Mr.-Nye argues the accident thwarted his intent to return work and denied him income as a personal trainer, the record supports the trial court’s finding. In particular, Mr. Nye was on disability benefits and had previously been found unable to work. 1 ¶ flMoreover, Mr. Nye failed to submit any documentation of income earned as a personal trainer and never submitted any application to return to work. Consequently, the trial court was not clearly wrong in disallowing Mr. Nye’s loss wage claims.

Mr. Nye also argues he should havé received 100% of future medical expenses' because they relate to treatment for his RSD and costs for his anterior cervical fusion, all of which allegedly results exclusively from the May 2012 accident. Mr. Nye did not prove he would require a future anterior cervical fusion; we thus find the trial court did not err in failing to award $62,500.00 for the cost of the surgery.

The trial court determined Mr. Nye’s future medical award based on testimony from Dr. Vogel that future treatment would be palliative and designed to control his pain complaints. The medical records from Dr. Thompson also recommended a non-surgical course of treatment to deal with Mr. Nye’s pain complaints, which he described as “all over his body.” Based on this palliative course of treatment, the trial court awarded Mr. Nye future medical expenses of $310,939.20 for medication; $34,428.00 in pain management expenses; $72,480.00 for pain counseling; and $5,750.00 for a spinal stimulator, for a total of $423,497.20. These sums covered Mr. Nye’s 30.2 years life expectancy. The trial court then reduced the award by 50% to $211,798.60, based on its findings that the accident was only partially responsible for Mr. Nye’s pain complaints. Contrary to Mr. Nye’s assertions, the medical evidence did not show that his future medical treatment was only to deal with pain complaints that resulted exclusively from RSD. Thus, we conclude the record supports the trial court special damage awards.

12oUpon review, the trial court did not abuse its discretion in its award of general damages or special damages to Mr, Nye. Therefore, we likewise find this assignment of error unpersuasive.

CONCLUSION

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED

LOBRANO, J., CONCURS IN THE RESULT.

      . The lawsuits filed by Mr. Nye and Mr. Urquhart against the defendants, respectively, were consolidated. Mr. Urquhart also filed suit against Mr. Nye; however, that lawsuit was settled before trial.

      . Mr. Urquhart died on February 23, 2014, prior to the trial date. These documents were introduced in lieu of live testimony..

      . Mr. Urquhart’s death certificate, which was admitted into evidence, lists his cause of death as cardio respiratory arrest, secondary to congestive heart failure-cardiac pacemaker-ascites.

      . Dr. Kenneth Vogel, Mr. Nye’s neurosurgeon, described RSD as a neurological disorder where the normal sensation attached to the sympathetic nervous system becomes painful and results in possible discoloration, swelling, and edema.

      . Palliative care includes a treatment plan to offer quality comfort to patients dealing with symptoms associated with a chronic illness. See palliativedoctors.org.

      . Dr. Thompson’s'medical reports were introduced into evidence in lieu of his live testimony.

        , This Court dismissed the consolidated appeals without prejudice because the initial judgment lacked the necessary decretal language. See Urquhart v. Spencer, 2015-1354 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074. Upon remand, the trial court issued an amended final judgment from which both parties now appeal.

      . See also La. C.C. art. 2324.1, which provides ''[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.”

      . La. C.C. art. 1999 provides "[wjhen damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages.”

      . The parties stipulated to past medical damages of $167,563.85.


source: Caselaw Access Project

author: Judge Edwin A. Lombard LOBRANO, J.,

license: Public Domain

text:
    Ben GUILLORY v. CITY OF NEW ORLEANS, et al
    NO. 2016-CA-0638
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 2, 2017

      Salvador I. Bivalacqua, GALANTE & BIVALACQUA LLC, 650 Poydras Street, Suite 2615, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPEL-LEE
    Gregory Swafford, ATTORNEY AT LAW, 4734 Franklin Avenue, P. O. BOX 820416, New Orleans, LA 70182, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Joy Cossich Lobrano)
   Judge Edwin A. Lombard

I,The Appellant and defendant-in-recon-vention, Ben Guillory, seeks review of the March 14, 2016 judgment of the district court awarding the Appellee and plaintiff-in-reconvention, The Laurel Group, LLC (“TLG”) damages for abuse of process and malicious prosecution in the amount of $68,415.66, partially inclusive of attorneys, plus interest. Finding that the district court did not err, we affirm. Furthermore, Mr. Guillory’s exception of prescription is denied. Lastly, the Answer to Appeal of TLG is also denied. -

Facts

In 2009 the City of New Orleans, Code Enforcement Bureau (“the City”) inspected Mr. Guillory’s property located in Orleans Parish at 2421 Peniston Street (“the Property”) for blight violations, which the City found. The City, on July 1, 2009, notified Mr. Guillory that his property had been inspected and was found to be in violation of Chapter 28 of the City Code of New Orleans. The notice, which was sent via certified mail and posted on the door of the Property, further advised Mr. Guillory: 1.) of a list of code violations existing on the Property; 2.) that a hearing was scheduled in a little over 30 days, on August 10, 2009, with the time, |adate and location of the hearing listed; 3.) that he had the right to request an extension; and 4.) that the hearing was being held to determine if the Property is blighted for purposes of appropriation;

Mr. Guillory did not attend the hearing, where he was found guilty of code violations and fined $500 plus $75 in court costs as well as a daily fine of $500. Notice of the Judgment was mailed to him via certified mail. The City later filed its Judgment with the Recorder of Mortgages.

Eventually the City requested the Clerk of Court to issue a Writ of Fieri Facias on February 4, 2011. However, Mr. Guillory took no action to contest the City’s seizure of the Property. In September 2011, the impending sale of the Property was advertised in the “Times-Picayune” and the “Louisiana Weekly.”

TLG was the highest bidder on the Property at the October 18, 2011 sale, placing a winning bid in the amount of $11,000. On January 3,2012, an Act of Sale was executed between the City and TLG, which was required to immediately begin renovations as a condition of the sale. TLG complied with this requirement completing the majority of the renovations by July 2012.

On May 7, 2012, Mr. Guillory filed a Petition in Suit to Annul Sale against the City and TLG alleging that he never received notice of the enforcement proceeding, nor of the notice of the seizure and sale. Additionally, he recorded a notice of lis pendens in the Orleans Parish conveyance records. TLG avers that | ¡¡attempted to sell the Property after the renovations were complete; however, it discovered there was a notice of lis pendens on the Property precluding its sale.

TLG answered the nullity action and later, on February 26, 2017, filed an amended answer and a reconventional demand raising a claim for unjust enrichment against Mr. Guillory. TLG and Mr. Guillory later filed cross-motions for summary judgment. The district court granted TLG’s motion for summary judgment dismissing Mr. Guillory’s claims against it. Thereafter, TLG was granted leave to file its First Supplemental Reconventional Demand, which it filed on August 30, 2013. TLG raised claims of abuse of process, malicious prosecution and negligence against Mr. Guillory in its First Supplemental Reconventional Demand. Additionally, TLG filed a motion for sanctions under La. Code Civ. Proc. art. 863 against Mr. Guillory, which was denied by the district court.

Mr. Guillory filed a notice of appeal from the district court’s grant of TLG’s motion for summary. judgment on September 9, 2013. However, the parties later agreed to settle their dispute resulting in Mr. Guillo-ry receiving $40,000 and TLG reserving the rights it asserted in its First Supplemental Reconventional Demand. Thereafter, the district court signed an order on February 5, 2014, dismissing Mr. Guillo-ry’s appeal.

On March 3, 2016, trial was held on TLG’s First Supplemental Reconventional Demand. Finding that TLG met its burden of proving its causes of action and resulting damage, the district court rendered judgment on March 14, 2016, awarding TLG $40,000.00 for its claims, and attorney’s fees in the amount of $28,416.66 for its defense against Mr. Guillory’s suit. On May 31, 2016, the Ldistrict court awarded TLG an additional $6,506.68 for attorney’s fees related to TLG’s prosecution of its claims against Mr. Guillory.

Mr. Guillory timely filed the instant appeal. In his appeal, he raises three assignments of error:

1. the district court committed manifest error by granting judgment in favor of plaintiff in reconvention on the claim of malicious prosecution where TLG failed to prove a bona fide termination in its' favor of the prior litigation;
2. the district court committed manifest error when it granted the judgment on the claim of abuse of process where TLG failed to prove a willful act in the use of the process not proper in the regular'.prosecution of the proceedings; and,
8. the district court committed manifest error by awarding attorney fees to TLG.

Exception of Prescription

Prior to discussing Mr. Guillory’s assignments of error, we shall address his exception of prescription. Mr. Guillpry avers that TLG raised claims of abuse of process, malicious prosecution apd negligence for the first time in its First Supplemental Reconventional Demand, which was filed on August 29, 2013. Mr. Guillory, the defendant-in reconvention specifically contends that the abuse of process and negligence claims raised-had prescribed by the date of the filing. He argues that the three causes of action raised by TLG are. tort-based; thus, they are subject to a libera-tive one-year prescriptive period under La. Code Civ. Proc. art. 3492. He argues that said claims were based on alleged tortious conduct that occurred on May 7, 2012, and therefore had prescribed by the time TLG’s First | ^Supplemental Reconventional Demand was filed. We disagree finding that the assertions of both the original and First Supplemental Reconventional Demand relate to Mr, Guillory’s assertion of ownership over the Property.

“When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to'be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.” La. Code Civ. Proc. art. 1153. This court has explained that that where a sufficient factual nexus exists between the original and amended pleadings technical prescriptive bars do not preclude raising the' claims in the amended pleading:

‘La. Code Civ. Proc. art. 1153 permits amendment despite technical prescriptive bars where the original pleading gives fair notice of the general fact situation out of which the amended claim arises.’ Gunter v. Plauche, 439 So.2d 437, 440 (La.1983), citing Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980). ‘Where there is • some factual connexity between the original and amended assertions, together with some identity of interest between the original and the supplemental party, amendment should be allowed.’ Baker, 390 So.2d at 1275; Gunter, 439 So.2d at 440.

De Atley v. Victoria’s Secret Catalogue, LLC, 04-0661, p. 5 (La.App. 4 Cir. 5/14/04), 876 So.2d 112, 116. Moreover, “[w]here an original timely pleading provides a party with actual notice that a formal claim is being made based on a particular factual situation, permitting relation back of a post-prescriptive amendment based on the same factual situation does not violate any essential purpose of a prescriptive statute.” Watson v. Woldenberg Vill., Inc., 16-0159, p. 12 (La.App. 4 Cir. 10/5/16), 203 So.3d 317, 325, writ denied, 16-1964 (La. 12/16/16), 211 So.3d 1168 (citing Baker v. Payne and Keller of La., Inc., 390 So.2d 1272, 1275 (La. 1980).

|fiIn the'matter sub'judice, the record reveals that TLG’s assertions in its original and supplemental reconventional demand relate to Mr. Guillory’s assertion of ownership over the Property. TLG’s Re-conventional Demand was filed on February 26, 2013. Therefore, we find that TLG’s filing of its First Supplemental Re-conventional Demand, on August 30, 2013—alleging claims of abuse of process, negligence, and malicious prosecution—related back to the date of the filing of the original Reconventional Demand, and, as such, were timely filed within the one-year liberative prescriptive period expiring on May 7, 2013. The exception of prescription is denied for the foregoing reasons.

Malicious Prosecution

In its first assignment of error, Mr. Guillory argues that TLG did not carry its burden of proof that a bona fide termination of Mr. Guillory’s lawsuit in favor of TLG had occurred at the time it asserted the malicious prosecution claim. One of the requirements for prevailing on a malicious prosecution claim is that there be a bona fide termination of the previous proceeding in favor of the party asserting the malicious prosecution claim. Mr. Guil-lory maintains that at the time TLG filed its First Supplemental Reconventional Demand on August 29, 2013, wherein it raised its claim for malicious prosecution, the delay period for taking an appeal had not yet run. Therefore, it could not be said that there had been a bona fide termination of Mr. Guillory’s action in favor of TLG, and TLG had no evidence of a bona fide termination in its favor at the time of filing its claim.

| ./Moreover, he asserts that TLG improperly raised its claim for malicious prosecution by way of an answer and reconven-tional demand to his lawsuit. He maintains that the filing of a malicious prosecution suit by way of reconventional demand is not allowed, pursuant to the Third Circuit’s holding in Lees v. Smith, 363 So.2d 974 (La.App. 3 Cir. 1978), wherein that court found that a bona fide termination requirement had not been met. The Lees court went on to state:

the policy behind this requirement is apparent; a party bringing a suit should not be made to defend his right to bring such until it is fully determined at trial that the original action was erroneously brought. The possible “chilling effect” on a citizen’s constitutional right to seek redress in the courts is an important consideration.

Id. at 978.

We note neither of these arguments were raised in the district court. Pursuant to Rule 1-3, Uniform Rules-Courts of Appeal, issues not raised in the district court will not be given consideration for the first time on appeal. Moreover, Mr. Guillory’s arguments also fail on the merits.

The Louisiana Supreme Court has explained that “[t]he obvious purpose of the ‘bona fide termination’ requirement in malicious prosecution cases is that the underlying litigation should be brought to a conclusion on the merits before a malicious prosecution suit based on the underlying litigation is allowed to proceed.” Savoie v. Rubin, 01-3275, p. 4 (La. 6/21/02), 820 So.2d 486, 488. The purpose of the bona fide termination requirement is unrelated to the expiration of the delay period for taking an appeal, but rather is based on a requirement that the underlying litigation be concluded by a judgment on the merits. Mr. Guillory cites no legal support for his interpretation of the bona fide termination requirement.

| «Lastly, we find that Mr. Guillory’s reliance upon Lees is misplaced. TLG asserted its claim for malicious prosecution in its First Supplemental Reconventional Demand, not in its answer or its reconven-tional demand. At the time that TLG filed its First Supplemental Reconventional Demand, Mr. Guillory’s claims against TLG had been dismissed on summary judgment. Conversely, one of the main procedural issues presented to the Third Circuit in Lees was that the plaintiff-in-reconvention raised a claim for malicious prosecution in its reconventional demand before there was a bona fide termination of the underlying suit. This is factually distinct from the matter sub judice. This assignment of error is without merit.

Abuse of Process

In his second assignment of error, Mr. Guillory argues that the district court committed a manifest error when it granted the judgment on the claim of abuse of process where TLG failed to prove a willful act in the use of the process not proper in the regular prosecution of the proceedings.

First, he argues that there is no legal requirement that a plaintiff be in good faith upon commencement of an action. The purpose of his lawsuit, he argues, was to annul the sale of the Property to TLG by the City of New Orleans through its code lien foreclosure sale. He asserts that although the district court determined that he was not in good faith at the time he filed the suit, this was not a requirement for prevailing on an abuse of process claim. Mr. Guillory notes that in abuse of process suits, “[t]he gist of the action is the misuse or misapplication of the process, after it has once been issued, for an end other than that it was designed to accomplish.” Prosser, Torts, § 98; 1, Cooley, Torts, 4th Ed., § 131, p. 437, Annotation, A.L.R., 580; Restatement, Torts, § 682; cf Restatement, Torts § 136(b), comment c. He also relies upon the explanation that the initiation of vexatious civil proceedings known to be groundless is not abuse of process. 52 Am.Jur.2d. § 2 at 187 (1970). The cause of action goes to the use of the process once it has been issued for a purpose for which it was not designed. Mini-Togs, Inc. v. Young, 354 So.2d 1389 (La.App. 2 Cir. 1978). He maintains that he is not liable for abuse of process when he has done nothing more than carry out the process to its authorized conclusion.

Furthermore, Mr. Guillory further contends that TLG has failed to prove that there was an irregularity in the proceeding. He avers that his filing of the petition to annul and the notice of lis pendens pursuant to La. Code Civ. Proc art. 3751, was a regular use of the process. He asserts that neither wrongful motive, purpose, intent or malice can constitute abuse where there is no showing of abuse through an illegal, improper or irregular use of the process. Id. at 1390. TLG, he argues, had to establish that he had an ulterior motive and took improper steps in the regular course of the proceedings. Mr. Guillory maintains that the record is void of any evidence substantiating either of these elements.

He contends that TLG did not meet its burden of proving an ulterior motive on his part. He avers that TLG’s only evidence of ulterior motive was the “self-serving testimony of co-counsel Scott Galante,” who testified that Mr. Guillory’s motive to receive money from TLG became apparent during the only meeting held during the course of this litigation. He avers there is no other evidence that he sought money from TLG. TLG, he argues, failed to prove that any of the steps taken him during the course of the proceedings demonstrate an act in the use of legal process not proper in the regular prosecution of the proceedings. He contends that TLG failed to meet its burden of proof because no evidence was I ^entered into the record evidencing that TLG proved the second element of the abuse of process claim.

There are two essential elements of a cause of action for abuse of process: (1) the existence of an ulterior purpose; and (2) a willful act in the use of the process not in the regular prosecution of the proceeding. Hebert v. Louisiana/Licensed Prof'l Vocational Rehab. Counselors, 07-610, p. 9 (La.App. 3 Cir. 3/4/09), 4 So.3d 1002, 1009 (subsequent procedural history omitted).

At trial on TLG’s First Supplemental Reconventional Demand, the Court heard testimony from Mr. Galante, Albert Walsh, and Mr. Guillory, in addition to receiving numerous documents into evidence. Mr. Walsh, who is the managing member of TLG, made the winning bid on the Property and retained the law firm of Mr. Ga-lante when he discovered that he could not sell the Property. .The court explained in its Reasons for Judgment that the:

evidence clearly established that Ben Guillory was not in good faith when he commenced suit and named The Laurel Group as a defendant in these proceedings; where he had knowledge that the law did not support a cause of action against The Laurel Group, as an undisputed innocent, good faith, third party purchaser of 2421- Peniston Street; and for the purpose of putting a cloud on the title to the property in order to extract money-from The Laurel Group, when he had knowledge that none was legally due.

The testimony and evidence introduced at trial support this finding. ,

Mr. Galante and Mr. Walsh both testified that Mr. Guillory created a cloud on the title of the Property by recording the notice of lis pendens, which—as Mr. Walsh explained—-consequently prevented TLG from expeditiously selling the Property in order- to timely pursue other business ventures, They further testified that Mr. Guil-lory and his counsel made clear that Mr. Guillory wanted to be |n compensated to remove' the notice of lis pendens and did not desire to regain'ownership of the Property despite filing his petition to annul the sale, and subsequently filing the notice of appeal. Additionally, Mr, Walsh testified that he later personally mét with Mr, Guil-lory, who agreed to execute a quitclaim deed and withdraw his appeal in exchange for receiving $40,000.

The court also explained in its reasons for judgment that it did not find Mr. Guillory to be a credible witness. “Unless clearly contrary to the evidence; credibility determinations are within the discretion of the' trier of fact and will not be disturbed by the reviewing court.” Pearson v. Dep’t of Police, 09-0725, p. 8 (La.App. 4 Cir. 11/12/09), 26 So.3d 264, 268 (citations omitted). We do not find that the district court' manifestly erred in holding that TLG met its burden of proof on its abuse of process claim under the facts presented. This assignment of error is without merit.

Attorney’s Fees

Lastly,.in Mr. Guillory’s remaining assignment of error, he avers that the district court erred in awarding attorney fees for amounts allegedly expended by TLG in defense of Mr. Guillory’s suit and the prosecution of its reconventional demand. It is well settled in Louisiana that as a ‘general rule attorney’s fees are not allowed except where authorized by statute or contract. Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970). Mr. Guillory maintains that there is no statutory basis for the award of attorney fees on claims for an abuse of process,-malicious prosecution or negligence. -He further argues that a contractual relationship did not exist between the parties upon which to base the award.

However, this Court has explained that claims for abuse of process are an exception to the aboVe-referenced general rule. Favrot v. Favrot, 12-1573, p. 11 (La.App. 4 Cir. 5/1/13), 115 So.3d 1190, 1197, modified on reh’g (May 22, 2013), writ denied, 13-1735 (La. 11/1/13), 125 So.3d 433 (citing In re Mashburn Marital Trusts, 10-0278, p. 14 n. 6 (La.App. 1 Cir. 12/22/10), 52 So.3d 1136, 1145). Additionally, “when a malicious prosecution tort claim is pursued, a claim for attorney’s fees is a claim for compensatory.damages, of which attorney’s fees incurred in the underlying litigation are a component.” Waste Mgmt. of Louisiana, L.L.C. v. Par. of Jefferson ex rel. Jefferson Par. Council, 66 F.Supp.3d 761, 778 (E.D. La. 2014) (citing Ross v. Sheriff of Lafourche Parish, 479 So.2d 506, 513-14 (La.App. 1 Cir.1985). Lastly, regarding TLG’s negligence claim, the Judgment and Reasons for Judgment are silent as to whether the district court awarded TLG attorney’s fees for its negligence claim; therefore, we will not address that issue. This 'assignment of error is without merit.

Answer to Appeal

In TLG’s answer to appeal, it asserts that the district court erroneously awarded TLG $5,506.58 in Costs and Attorney Fees when TLG submitted evidence that said amounts totaled $18,764.80.

The record reflects that Mr. Guillory did not file a motion to traverse TLG’s Statement- of Costs and Reasonable Attorney Fees. By order dated May 31, 2016, the district court awarded TLG $5,000 for reasonable attorney fees from February 11, 2016, to the conclusion of the matter as well as $506.68 for costs accrued for the same time period. Based on the record presented, we find that the district court properly awarded attorney’s fees and costs to TLG arid did not abuse its vast discretion in making this award. This assignment of error is without merit.

JjDECREE

For the foregoing reasons, the judgment of the district court is affirmed. The exception of prescription of Ben Guillory is denied. Lastly, the Answer to Appeal of The Laurel Group is-also denied, '

AFFIRMED; EXCEPTION OF PRESCRIPTION DENIED; ANSWER TO APPEAL DENIED

LOBRANO, J., DISSENTS AND ASSIGNS REASONS

LOBRANO, J.,

DISSENTS AND ASSIGNS. REASONS.

LI respectfully dissent from the majority opinion. Because TLG failed to file its malicious prosecution claim after the termination of the underlying litigation, and the record does not establish that Guillory willfully used process outside of his regular prosecution of the proceeding, I would reverse the judgment of the district court.

The tort of malicious prosecution requires commencement of a criminal or civil proceeding by the malicious prosecution defendant, causation of that proceeding by the malicious prosecution defendant, the termination of that proceeding in favor of the malicious prosecution plaintiff, absence of probable cause for the institution of the original proceeding, the presence of malice, and damages. Robinson v. Goudchaux’s, 307 So.2d 287, 289 (La. 1975). The Louisiana Supreme Court states “that the purpose of the bona fide termination favorable to the present plaintiff requirement in malicious prosecution cases is to insure that the underlying litigation is brought to a conclusion on the merits before a malicious prosecution suit based on the underlying litigation is allowed to proceed.” Lemoine v. Wolfe, 2014-1546, p. 8 (La. 3/17/15), 168 So.3d 362, 368 (internal citations omitted).

|gThe majority takes issue with the fact that Guillory does not cite any case supporting his contention that a malicious prosecution claim cannot be brought by a reconventional demand. Regardless of the dearth of citations, this Court has already espoused that interpretation of the bona fide termination requirement. Judge Robert Lobrano, writing for a unanimous panel of the Fourth Circuit, stated in Ortiz v. Barriffe:

Malicious prosecution was not asserted in Ortiz’s reconventional demand, nor could it be. The material fact supporting that claim was the unsuccessful prosecution by Barriffe and Ware of them suit against Ortiz. This claim could not be asserted until that lawsuit terminated. This reasoning is consistent with the well settled jurisprudence which holds “[tjermination of civil proceeding which are contended to have been maliciously prosecuted is an essential element for a successful action for malicious prosecution.”

523 So.2d 896, 897 (La. App. 4th Cir. 1988) (citations omitted) (emphasis added).

In the case sub judice, the underlying lawsuit was not terminated in favor of TLG when TLG brought their claim of malicious prosecution via reconventional demand. To assert otherwise effectively undoes the rationale behind the bona-fide termination requirement. Moreover, expanding the meaning of termination of a civil proceeding to accommodate the claim before the Court favors malicious prosecution claims in a manner not intended by Louisiana law. See Johnson v. Pearce, 313 So.2d 812, 816 (La. 1975); Borne v. Smith, 2009-0735, 2010 WL 8971099 at *3 (La. App. 4 Cir. 1/27/10) (acknowledging that malicious prosecution is “[n]ever favored in our law”).

The majority draws a distinction between filing a malicious prosecution claim in a supplemental reconventional demand rather than an original reconventional demand. This is a distinction without a difference, as in either case there has been no termination of the litigation. The ability to file any type of reconventional demand is dependent on the pendency of the original suit. See La. C.C.P. art. 1061 (stating that the “defendant in the principal action” may use a | sreconventional demand to plead any causes of action that he may have against the “plaintiff in the principal action,” and shall use a reconventional demand to assert “all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.”). Thus, the bona fide termination requirement cannot be met by any malicious prosecution claim brought in a reconventional demand. See Lees v. Smith, 363 So.2d 974, 978 (La. App. 3rd Cir. 1978).

As to the abuse of process claim, the majority opinion errs in its interpretation of the elements of the tort. Abuse of process is related to malicious prosecution, but differs in that the underlying lawsuit need not have been terminated in favor of the present plaintiff. § 12:20.Abuse of process, 12 La. Civ. L. Treatise, Tort Law § 12:20 (2d ed.). To commit abuse of process, the tortfeasor must misuse a process already legally issued in an attempt to obtain a result not proper under the law. Melius v. Keiffer, 2007-0189, pp. 6-8, 980 So.2d 167, 170 (La. App. 4 Cir. 3/12/08) (citations omitted). As the majority states, there are two essential elements of a cause of action for abuse. of process: (1) the existence of an ulterior purpose; and (2) a willful act in the use of the process not in the regular prosecution of the proceeding. Hebert v. Louisiana Licensed Prof'l Vocational Rehab. Counselors, 2007-610, p. 9 (La. App. 3 Cir. 3/4/09), 4 So.3d 1002, 1009 (emphasis added). However, I disagree that Guillory’s conduct in this litigation rose to the level of abuse of process.

In finding that Guillory committed the tort of abuse of process, the majority cites the testimony of several witnesses who asserted that “Mr. Guillory and his counsel made clear that Mr. Guillory wanted to be compensated to remove his notice of lis pendens and did not desire to regain ownership of the Property despite filing his petition to annul the sale, and subsequently filing the notice of appeal” | ¿along with the admission of several documents into evidence as sufficiently establishing abuse of process.

This finding errs in two respects. First, it assumes that Guillory’s filing of the notice of lis pendens constituted a willful act in the use of the process not in the regular prosecution of the proceeding. I respectfully disagree, and find that the filing of the notice of lis pendens was simply part of the regular prosecution of the proceedings. Filing a notice of lis pendens along with a lawsuit is a typical course of action when litigation centers on the ownership of property. See La. C.C.P. art. 3751 (stating that pendency of an action affecting title to immovable property does not constitute notice to third persons unless a notice of lis pendens is filed as required by La. C.C.P. 3752). It is quite possible that counsel for Guillory would have committed malpractice had he not filed the notice of lis pendens. Although the record establishes that Guillory did not take action to prosecute his appeal of the district court’s judgment granting TLG’s motion for summary judgment, thus rendering TLG subject to the notice of lis pendens for a time when Guillory was not actively pursuing his claim, the appropriate remedy for TLG would have been filing a motion to dismiss the appeal after Guillory failed to file his brief within the appropriate time limit and demanding that the lis pendens be dismissed. See La. C.C.P. art. 2162 (allowing an appeal to be dismissed if abandoned); see also Uniform Rules of Louisiana Courts of Appeal, R. 2-8.1 and R. 2-8.6; La. C.C.P. art. 3753 (providing that “the notice of pendency filed in connection with the proceeding which gave rise to the judgment shall be canceled at the request of any interested party if the judgment has been canceled or if the action or proceeding has been dismissed”). Second, testimony establishing that the witnesses for TLG perceived Guillory’s actions as manifestations of ill intent and the admission of | ^documents supporting that belief bears only on the first element of ulterior motive. However, ulterior motive alone is insufficient to establish abuse of process. See Mini-Togs, Inc. v. Young, 354 So.2d 1389, 1390 (La. App. 2nd Cir. 1978); Southern Snow Mfg. Co., Inc. v. Irvin, No. 14-579, 2014 WL 4983489 at *8 (E.D. La. 10/14/2014). Without evidence that establishes a specific willful improper act in Guillory’s use of process to prosecute his lawsuit, TLG has not carried its burden to establish the elements of abuse of process, no matter how many witnesses speak to Guillory’s ulterior motive. Compare Ratcliff v. Boydell, 93-0362, p. 14 (La. App. 4 Cir. 4/3/96), 674 So.2d 272, 281, as amended on reh’g (May 31, 1996) (finding that the record before the Court supported a finding of abuse of process where defendants had used legal proceedings to harass the plaintiff, including filing “in excess of 60 exceptions and motions, and six devolu-tive appeals”). For these reasons, I would find that the district court manifestly erred in finding that Guillory maliciously prosecuted and abused process against TLG, and reverse the judgment of the district court.

      . The district court later awarded TLG additional attorney's fees and costs in the amount of $5,506.68.

      . The City also maintains that Mr. Guillory received Notice of the Judgment and of the City Lien on his property tax bill.

      . The City avers that the Sheriff of Orleans Parish served a Notice of Seizure and Notice of Appraiser upon Mr. Guillory on April 6, 2011.

      . Mr. Guillory executed an act of transfer of the Property to an LLC he wholly owned, FMCC, LLC. The filing of the transfer led to a new enforcement action against Mr, Guillory and FMCC for the continued blight. The City determined, on February 2, 2012, that the Property remained blighted.

      . Additionally, the district court granted the City's motion for a judgment on the pleadings.

      . Pursuant to La. Code Civ. Proc. art. 2163 an appellate court can consider a peremptory exception filed for the first time in that court when pled prior to the submission of the case and proof of the grounds for- the exception appear on the record.

      . The six (6) elements required to prevail on a malicious prosecution claim are: 1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff. Lemoine v. Wolfe, 14-1546, p. 8 (La. 3/17/15), 168 So.3d 362, 367 (citations omitted).

      . The district court had previously awarded TLG $28,415.66 -for the attorney fees and costs it incurred through February 11, 2016.

      . In addition to the other arguments presented, throughout TLG's brief, it is argued that the lis pendens placed a cloud on the title to the Property longer than was proper because Guillory failed to pursue his appeal,


author: Judge Daniel L. Dysart

text:
    Troy DUPUIS and Warehouse District Neighborhood Association v. The CITY OF NEW ORLEANS THROUGH its ZONING BOARD OF ZONING ADJUSTMENTS
    NO. 2017-CA-0052
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 2, 2017

      William' D. Aaron, Jr., DeWayne L. Williams, AARON & GIANNA, PLC, 201 St. Charles Avenue, Suite 3800, New Orleans, LA 70170, COUNSEL FOR PLAINTIFF/APPELLANT
    Shawn Lindsay, DEPUTY CITY ATTORNEY, Rebecca H. Dietz, CITY ATTORNEY, Adam J. Swensek, CHIEF DEPUTY CITY ATTORNEY, CITY OF NEW ORLEANS, 1300 Perdido Street, City Hall—Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A.. Lombard, Judge Daniel L. Dysart)
   Judge Daniel L. Dysart

11 This is an appeal by plaintiffs, Troy Dupuis and the Warehouse District Neighborhood Association (‘WDNA”), of a trial court judgment denying their Petition for Judicial Review of a City of New Orleans Board of Zoning Adjustments (“BZA”) ruling. For the reasons that follow, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Troy Dupuis and the WDNA (sometimes - collectively referred to as “plaintiffs”) filed this lawsuit following an April 11, 2016 decision of the. BZA granting a variance to Eskew Dumez Ripple Architects (“EDR Architects”) concerning the redevelopment of a vacant, 5-story building and adjacent parking lot located in the Warehouse District Local Historic District in New Orleans, Louisianá (the “Property”). According to the lawsuit, EDR Architects sought the following variances in connection with their proposal to develop the site into a hotel:

⅛¾ - A waiver of the required minimum setback (so that there would be no setback);
- A waiver of 55 feet of the required height maximum of 125 feet (so that the maximum allowed would be 180 feet); and
- A waiver of the required maximum number of stories of 10 (to increase the number of stories to 16).

It is only the second of these variances approved by the BZA to which the plaintiffs objected. Through this lawsuit, the plaintiffs sought to have the approval of this ruling declared null and void “because the decision of the BZA was arbitrary and capricious.”

A hearing was held on the plaintiffs’ request for a review of the BZA decision on September 16, 2016 and by judgment dated September 25, 2016, the trial court ruled in favor of the City of New Orleans, through the BZA, denying the Petition for Judicial Review, a decision noted by the trial court to be final. Plaintiffs timely filed an appeal of this judgment and contend that the trial court erred in denying their Petition for Judicial Review on the basis that the BZA’s decision was arbitrary and capricious.

Standard of Review

At the outset, we note that the district courts have original jurisdiction to review a decision of an administrative body, such as the BZA. See, e.g., Lanaux v. City of New Orleans, Bd. of Zoning Adjustments, 489 So.2d 329, 331 (La. App. 4 Cir. 1986)(“the challenge to the grant of a zoning variance is an action invoking the original jurisdiction of the trial court”); Gertler v. City of New Orleans, 346 So.2d 228, 233 (La. App. 4 Cir. 1977); River Oaks-Hyman Pl. H. Civ. A. v. City of New Orleans, 281 So.2d 293 (La. App. 4 Cir., 1973)(“when a district court reviews a decision of an administrative body, it is exercising ‘exclusive original jurisdiction’ ”). Indeed, “[t]he purpose of certiorari review by the district court of decisions of boards and quasi-judicial tribunals is to ‘determine whether jurisdiction has been exceeded, or to decide if the evidence establishes a legal and substantial basis for the Board’s decision.’” Esplanade Ridge Civic Ass’n v. City of New Orleans, 13-1062, p. 3 (La. App. 4 Cir. 2/12/14), 136 So.3d 166, 169, quoting Elysian Fields, Inc. v. St. Martin, 600 So.2d 69, 72 (La. App. 4th Cir.1992); Cordes v. Bd. of Zoning Adjustments, 09-0976, p. 6 (La. App. 4 Cir. 1/20/10), 31 So.3d 504, 508; Daigle v. Jef ferson Par. Council, 09-440 p. 7 (La. App. 5 Cir. 5/25/10), 40 So.3d 1063, 1067.

The Courts of Appeal, then, have appellate jurisdiction with respect to the review of district court decisions concerning their review of decisions of zoning boards. See, River Oaks, 281 So.2d at 294-05. As the Supreme Court indicated, in King v. Caddo Par. Comm’n, 97-1873, pp. 14-15 (La. 10/20/98), 719 So.2d 410, 418, “[a] reviewing court does not consider whether the district court manifestly erred in its findings, but whether the zoning board acted arbitrarily, capriciously or with any calculated or prejudicial lack of discretion.”

This Court recently reiterated the role of the appellate court in reviewing a decision of a zoning board, first noting that, because “(zjoning laws and decisions fall within the legislative function of the state and local municipalities,” “the courts afford a presumption of validity to the decisions of zoning boards.” Vieux Carre Prop. Owners v. City of New Orleans, 14-0825, p. 6 (La. App. 4 Cir. 4/15/15), 216 So.3d 873, 877, writ denied sub nom., 15-1147 (La. 9/18/15), 178 So.3d 149 (Citations omitted). The Vieux Carre Court then explained:

[The] presumption [of validity] is rebut-table; and a party aggrieved by a decision of the BZA is entitled to judicial review through a writ of certiorari. Cordes [v. Bd. of Zoning Adjustments, 09-0976, p. 6 (La. App. 4 Cir. 1/20/10), 31 So.3d 504, 508]; see also La. R.S. 33:4727(E); La. R.S. 49:964. The purpose of certiorari review of the BZA decision is to determine whether the evidence establishes a legal and substantial basis for the decision or whether the BZA has exceeded its jurisdiction and acted in an arbitrary and capricious manner. Esplanade Ridge Civic Ass’n v. City of New Orleans, 13-1062, p. 3 (La. App. 4 Cir. 2/12/14), 136 So.3d 166, 169; Elysian Fields, Inc. v. St. Martin, 600 So.2d 69, 72 (La. App. 4th Cir.1992). “The test of whether a zoning board’s action is arbitrary and capricious is whether the action is reasonable under the circumstances.” Esplanade Ridge, 13-1062, p. 4, 136 So.3d at 169 quoting King v. Caddo Parish Com’n, 97-1873, p. 14 (La. 10/20/98), 719 So.2d 410, 418.

Id.

Our jurisprudence indicates that “the decisions of the BZA.. .are subject to judicial review only as to whether they are arbitrary, capricious or an abuse of discretion.” Antunez v. City of New Orleans Bd. of Zoning Adjustments, 15-0406, p. 2 (La. App. 4 Cir. 2/24/16), 187 So.3d 525, 526, quoting Ellsworth v. The City of New Orleans, 13-0084, pp. 6-7 (La. App. 4 Cir. 7/31/13), 120 So.3d 897, 902 (emphasis added). Thus, an appellate court “should not second guess the BZA or substitute its own judgment for that of the BZA.” Id. See also, City of Baton Rouge/Par. of E. Baton Rouge v. Myers, 13-2011, p. 6 (La. 5/7/14), 145 So.3d 320, 327-28 (“[i]t is only when an action of a zoning commission is found on judicial review to be palpably unreasonable, arbitrary, an abuse of discretion, or an unreasonable exercise of police power that such action will be disturbed”). | ^Moreover, “[w]hen there is room for two opinions, an action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed an erroneous conclusion has been reached.” Vieux Carre Prop. Owners v. City of New Orleans, 14-0825, p. 7, 216 So.3d 873 at 877-78 (quoting Toups v. City of Shreveport, 10-1559, pp. 3-4 (La. 3/15/11), 60 So.3d 1215, 1217.

In determining whether a zoning commission’s action is arbitrary, capricious, palpably unreasonable or an abuse of discretion, we note that “[t]he terms ‘arbitrary and capricious’ mean willful and unreasoning action, absent consideration and in disregard of the facts and circumstances of the case.” Mannino’s P & M Texaco Serv. Ctr., Inc. v. City of New Orleans, 15-0109, p. 3 (La. App. 4 Cir. 8/19/15), 173 So.3d 1186, 1188, quoting Toups v. City of Shreveport, 10-1559, p. 3 (La. 3/15/11), 60 So.3d 1215, 1217. Likewise, “when there is room for two opinions, an action is not arbitrary or capricious when exercised honestly and upon due consideration, even'though it may be believed an erroneous conclusion has been reached.” Id. quoting Toups, 10-1559, pp. 3-4, 60 So.3d at 1217.

On appeal, “[t]he aggrieved party bears the burden of showing that the BZA-decisión is arbitrary,'capricious, or manifestly erroneous in light of substantial evidence to the record.” Vieux Carre Prop. Owners, 14-0825, p. 7, 216 So.3d at 877.

DISCUSSION

The CZO expressly provides for the allowance of variances “to afford an applicant relief from the requirements of the letter of this Ordinance when unnecessary hardship or practical difficulty 'exists.” CZO, Art. 4.6.A. Under Art. 4.6.F of the CZO, the BZA is to consider the following nine factors in determining whether to grant a variance:

1. Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and’ which are not applicable to other lands, structures, or buildings in- the same zoning district.
2. Literal interpretation of the provi- ' sions of this Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Ordinance.
3. The special conditions and circumstances do not result from the actions of the applicant or any other person who may have or had interest to the property,
4.. Granting the variance requested will not confer on the applicant any special privilege which is denied by this Ordinance to other lands, structures, or buildings in the same district or 'similarly situated.
’5. The variance, if. granted, will’hot alter the essential character of the locality.
6. Strict adherence to the regulation for the property would result in a ., demonstrable hardship upon the owner, as distinguished from mere inconvenience.
7. The purpose of the variance is not based exclusively upon a desire to serve the convenience or. profit of the property owner or other interested party(s).
8. The granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements to the neighborhood in which the property is located.
9. The proposed variance will not impair an adequate supply of light and air to adjacent property, or increase substantially the congestion in the public street, or increase the danger of fire, or endanger the public safety.

See also O’Brien v. Bd. of Zoning Adjustments for City of New Orleans, 15-0169, pp. 4-5 (La. App. 4 Cir. 10/7/15), 177 So.3d 738, 740-41.

|7As this Court noted to Antunez, these nine criteria are to be analyzed by the BZA in determining whether to grant or deny a variance. Id., 15-0406, p. 3, 187 So.3d at 526. The BZA then conducts a hearing on the variance, prior to which “the BZA staff composes a report that discusses each of the nine criteria and provides a recommendation.” Id., p. 3, 187 So.3d at 527.

In the instant matter, the BZA staff found that the waiver sought by the EDR Architects (regarding the maximum building height) failed to meet five of the factors for a variance; namely, factors numbered 2, 3, 5, 6, and 7. On that basis, the BZA staff recommended that the BZA deny the request for .a variance of the maximum building height. The BZA issued its disposition of the case after the public hearing on April 11, 2016, approving the variance, finding that the factors had, in fact, been met. Its disposition states:

... [T]he Board c'arefully considered the facts and arguments for and against the application at the public hearing, and after considering • the Comprehensive Zoning Ordinance.., the Board is of the opinion that the weight of the evidence indicates that the Approval Standards for variances of Article 4, Section 4.6.F of the Comprehensive Zoning Ordinance, have been met and therefore, a motion was made by Todd James and seconded by Ramiro Diaz, for APPROVAL of the requested variances, subject to [certain enumerated] provisos[.] (Emphasis in the original).

On appeal, the plaintiffs maintain that the BZA approved the request for a waiver “without significant exploration or discussion of the Staffs report... or performing axi investigation and/or analysis itself, [and] merely rubberstamped [the EDR Architects’] application;” Their argument largely focuses on the BZA’s |«alleged failure to consider and address the issues raised by the BZA staff report. They contend that because the BZA staff is employed “to perform the analysis and make a recommendation” as to a variance, “[the] failure to [go with the Staff recommendation] in the absence of some detailed invés-tigative and analytical narrative disputing the Staff recommendation, would appear to be arbitrary and capricious conduct.” They argue that, in such a case, the decision “would not be based on due consideration, but rather some gut instinct or other unknown basis.” The plaintiffs then go through the BZA staff report and discuss each of the' findings of the BZA staff concerning those -factors which it found were lacking.

The plaintiffs recognize, however, that the BZA’s staff report is “preliminary in nature and essentially does little more than to summarize the issue for the Board.” Id., 15-0406,p. 3, 187 So.3d at 527, quoting McPherson v. City of New Orleans Board of Zoning Adjustments, 04-1129 (La. App. 4 Cir. 5/11/05), 902 So.2d 573 (uhpub.). Indeed,' the BZA staff recommendation is only oné consideration the BZA is to use when making its decision. Id. Other considerations can include “public opinion... voiced by neighbors.” Ellsworth v. City of New Orleans, 13-0084, p. 9 (La. App. 4 Cir. 7/31/13), 120 So.3d 897, 903. The court may also “take additional testimony or receive additional evidence as part of its consideration of ... an appeal from the board of adjustment.” Esplanade Ridge Civic Ass’n v. City of New Orleans, 13-1062, pp. 4-5 (La. App. 4 Cir. 2/12/14), 136 So.3d 166, 169.

Our review of the record of this case demonstrates that the BZA’s ruling was adequately based upon evidence before the BZA and we cannot say that the ruling was either arbitrary or capricious.

laThe evidence in this matter reveals that EDR Architects considered several options for the development of the Property and, as it indicated by its March 7, 2016 correspondence to the BZA, the variance it sought is designed to “alleviate hardships and special circumstances peculiar to the subject property, to comply with the demands of multiple regulatory agencies and to provide an appropriate design at the border of an historic neighborhood and the convention center district.” As such, EDR Architects noted, the selected development plan “shifts the height and bulk of the building away from the historic core of the neighborhood and grants no additional square footage to the development.”

EDR Architects submitted numerous documents in response to the plaintiffs’ Petition for Writ of Certiorari and in support of their request for a variance, including:

- A February 26, 2016 letter from the New Orleans Historic Landmarks Commission and Central Business District Historic District Landmarks Commission confirming “the actions of the Architectural Review Committee (ARC) of the Central Business Historic District Landmarks Commission,” which noted “that the BZA requirements are inconsistent with the predominate development plan of the historic district and they would be in support of the waivers required for the setback. The compositional strategy of the three building stepping up from the historic warehouse is successful and should be further developed; the ARC would support additional height to the middle building.” (Emphasis added).
- A March 4, 2016 Project NPP Report which “provides a summary of contacts with citizens, neighbors, public agencies, and interested parties.” It notes that two meetings were held “where citizens were invited to discuss the applicant’s proposal,” and several other meetings were held, including one with a council member, another with a representative of the Downtown Development District (“DDD”), and third with a representative of the Convention Center, Additionally, invitations were sent to the WDNA meeting at which the project was introduced. Furthermore, postcards were sent to addresses within a 600 foot radius of the Property site. While numerous concerns were raised (e.g., drop-off for the hotel, desire for public access to amenities within the hotel, desire for “green space”), no mention is made of the building height.
Im - An April 1, 2016 email from Troy Dupuis stating that the WDNA “only met once with the developer” and that the WDNA “specifically stated that 184 ft[.] should not be requested.”
- An April 01, 2016 email to Mr. Du-puis, indicating that a second meeting had been held and that “the majority of attendees voiced support for [the] proposed design and... requested height variance.” It likewise again noted that the proposed project stemmed from “a shared désire to respect the scale of the historic warehouse district by shifting the bulk on the site towards the Convention Center Boulevard and highway overpass,” thereby “not increasing the density on the site.. .[which] remains consistent with that which is permitted by the underlying zoning.”
- An April 1, 2016 letter to the BZA from Wayne Ducote, “a developer and hotel business owner in the New Orleans area,” who “participated in the planning effort with the [DDD] for the Lafayette Square/Upper CBD Height Study.” Among the conclusions of the study was “that height in the CBD should be focused on the perimeter of the neighborhood, creating a ‘bowl’ effect.” Mr. Ducote noted that the Property “is on the perimeter of the upper CBD neighborhood” and thus, the “request for height on the edge of the CBD keeps within the spirit of its conclusions.” He further noted that “the site is adjacent to the Pontchartrain Expressway and therefore will remain the perimeter of the upper CBD neighborhood.
- Letters or emails in support of the project from Clayton Randle and David Hecht of ABRI Design & Development, the developer of the site; Murat Gundogdu, the owner of a nearby business, Magazine Pizza; Bob Johnson, the General Manager of the New Orleans Ernest N. Morial Convention Center’ and Karen Sep-ko, a warehouse district resident and former owner of a condo in a building directly adjacent to the Property.

At the April 11, 2016 hearing, the BZA heard from numerous persons about the request for variance. All, with the exception of Troy Dupuis, spoke in favor of the variance. After considering the matter, the BZA concluded that all nine factors were present, including those which the BZA staff had concluded had not been lnmet. We have reviewed the record and find that the BZA decision was neither arbitrary or capricious nor an abuse of discretion

As concerns factor number 2, it was argued that the literal interpretation of the ordinance would deprive EDR Architects of rights commonly enjoyed by other properties in the same district. That is, EDR Architects sought to build a building of a certain size, as permitted by the ordinance—a right enjoyed by other neighboring properties. However, because of concerns raised by various entities about the preservation of the historical district (which sought restrictions on the height of the building to be constructed adjacent to the historic warehouse), EDR Architects designed the project so as to shift the mass of the building away from the historic district and towards the convention center area. Thus, without the allowance, EDR Architects would not be able to create a building of the maximum size allowed by the ordinance and, as Mr. Hecht noted, still be able to receive benefits enjoyed by other properties, such as historic tax credits, access to light and air or HDLC (Historic District Landmarks Commission) approval.

Thus, in denying the height variance, EDR Architects would be deprived of the rights enjoyed by others insofar as it would be unable to construct a building at the maximum size permitted by the ordinance without losing benefits enjoyed by others, such as historic tax credits and access to light and air. On this basis, we find no error in the BZA’s determination that criterion number 2 had been met.

We likewise find no error in the BZA’s finding that factor number 3 was met. That criterion looks to whether “[t]he special conditions and circumstances ... resulted-] from the actions of the applicant or any other person who may have l^or had interest in the property.” The record clearly demonstrates that the site for the project is entirely unique and presented “special conditions and circumstances” over which EDR Architects had no control or involvement. As Mr. Dumez and Mr. Halpern both indicated at the BZA hearing, the site is particularly difficult to develop, given its location near the outer edge of the warehouse district and its close proximity to the convention center and the elevated expressway (factors which were acknowledged by the BZA staff). EDR Architects played no role in any of these factors and in no way contributed to the special conditions and circumstances lead? ing to its request for a variance. Likewise, if EDR Architects were not allowed the variance and built a building at the maximum size allowed by ordinance, it would impact the historic warehouse, and the historic tax credits would be lost. This scenario, too, exists independent of any action on EDR Architects’ part.

Next we consider factor number 5, which considers whether the variance “if granted, will ,.. alter the essential character of the locality.” Despite the finding of the BZA staff, the BZA ultimately concluded that this factor was met as well. The design of the proposed project shifts the bulk.of the building away from the historic area and moves it towards the convention center. As Mr. Dumez noted at the BZA hearing,.the height of the building is consistent with the City of New Orleans’ master plan and the intent of a height study performed by the DDD, which intend for buildings of increased height to be located on the perimeter of the district. Mr. Sherman too, indicated at the BZA hearing that, in the opinion of the HDLC’s architectural review committee, the increase on the building’s height would not alter the essential character of the area. Similarly, Mr. Harris, appearing on behalf of Mr. Ducote, stated that Mr. Du-cote had been a participant in the CBD | ^height study, and in Mr. Ducote’s opinion, the height variance is within the spirit of the study. Several others who spoke at the BZA hearing indicated their dpinions that the height variance would not be injurious to adjacent properties.

Our review of the record reflects no error in the BZA’s conclusion that factor number 5 is met.

Factor number 6, which focuses on whether the strict adherence to the regulation “would result in a demonstrable hardship upon the owner, as distinguished from mere inconvenience,” has similar considerations as those contained in factor number 2. As noted herein, a strict adherence to the height restriction in the ordinance would result in one of two circumstances— one, by disallowing the variance, in order to construct a building of the maximum allowable size, certain benefits would be lost, such as tax credits; or two, in- order to maintain all benefits, the building would have to be downsized and the maximum allowable building size could not be achieved. We view this to be a “demonstrable hardship” rather than a “mere inconvenience” and we note that this hardship was not created by any action on the part of EDR Architects.;We thus find no error in the conclusion that factor number 6 is met. - .

Finally, as concerns factor number 7, the record clearly demonstrates that the purpose of the' variance is not driven by convenience or the pursuit of greater profit by the property owner. The record is replete with information indicating that the project’s size would not be increased by the grant of the variance.'To the contrary, the variance would merely shift the bulk of the building away from the historic site; the size of the building is within the parameters of the CZO. Accordingly, it cannot be said that the motivation for seeking the variance was either convenience or greater profit.

1 uOnly Mr. Dupuis spoke at the BZA hearing against the height restriction. He commented that there are no buildings'of equal height in the area and opined that the HDLC should not weigh in on building heights. He also commented that, in his opinion, the allowance of a variance would have an impact op other properties; for example, he noted that owners of empty lots may. seek similar waivers. However, as noted by numerous supporters of the variance, it was sought because of the unique nature of the Property. As Mr. Sherman noted in rebuttal to Mr. Dupuis’ statements, a variance would not create any precedent for other developments, simply because there are no identifiable tracts of land posing the same development issues; namely, that the site is at the edge of the CDB, in close proximity to the elevated expressway and across the street from the convention center.

Based on the record before us, we find that the plaintiffs failed to meet their burden on appeal by showing that the BZA decision in this matter is arbitrary, capricious, or manifestly erroneous in light of substantial evidence in the record. We find no evidence that the BZA abused its discretion in granting the variance at issue, and we find no basis for -reversing the judgment of the trial court which upheld the decision of the- BZA.

CONCLUSION

For the reasons set forth hérein, we affirm the trial court’s judgment denying |1flthe plaintiffs’ Petition for Judicial Review.

AFFIRMED

      . The Warehouse District Local Historic District was designated in 1978 and expanded in 1985 and 2007. It is bounded by Magazine Street, Lafayette/Constance Streets, Poydras Street, Convention Center Boulevard, and the Expressway.

        See

      https://www.nola.gov/nola/media/HDLC/ Historic% 20Districts/Warehouse.pdf.

      . The New Orleans Comprehensive Zoning Ordinance ("CZO”) provides in Article 17.4.A.2 that the maximum height of buildings located within the area designated as Section H (on Figure 17-2), the location of the site in dispute here, is 125 feet.

      . The trial court’s judgment notes that the petition was denied “for the reasons stated orally at the hearing;” however, the record before us does not contain a transcript of the hearing because the court reporter's equipment malfunctioned on the date of the hearing. Accordingly, the trial court's reasons for judgment are unknown.

      . At the April 11, 2016 hearing, a motion was made to accept the requested variance, on a finding that the nine criteria were met. The variance as unanimously approved..

      . The WDNA’s name is listed under Mr. Du-puis' name on the email; however, there is no indication of his capacity to speak on behalf of the WDNA. Nor does the Petition in this case give any information as to Mr. Dupuis' relationship with the WDNA, It merely states that Mr. Dupuis is "a person of full age and majority domiciled in the Parish of Orleans, State of Louisiana.”

      . Those persons included David Hecht, Steve Dumez (a principal and the design director of EDR Architects), Mike Sherman (land use counsel for the project), Jason Richards (an EDR Architect), Madeline O'Neal (on behalf of the Convention Center), Mason Harris (on behalf of Wayne Ducote), Edward Halpern (whose family had once owned the site), an attorney who works in the Central Business District, and an urban planner.

      . We note, as did the BZA, that a project to . construct a 24-story building -in the area has been approved. See Rubenstein v. City of New Orleans, 07-1211 (La. App. 4 Cir. 4/30/08), 982 So.2d 964, writ denied, 08-1437 (La. 10/3/08), 982 So.2d 1015, That building is located less than a mile from the Property at issue (albeit within a different district) and a height variance was granted for the construction of this building by the New Orleans City Council.