author: McClendon, j. WELCH, J.,

text:
    Kimberly K. LeBLANC and Albert LeBlanc v. Dr. William Nicholas LANDRY, III.
    No. 2008 CA 1643.
    Court of Appeal of Louisiana, First Circuit.
    June 24, 2009.
    Writ Denied Oct. 2, 2009.

      James A. Marchand, Jr., Laurie M. Pen-nison, Frank E. St. Philip, II, Covington, Louisiana, for Plaintiffs/Appellants, Kimberly K. LeBlanc and Albert LeBlanc.
    Deborah Deo Gracias Trahan, Emily G. Couvillon, Covington, Louisiana, for Defendant/Appellee, Dr. William Nicholas Landry, III.
    Before PARRO, McCLENDON, and WELCH, JJ.
   McClendon, j.

|2In this medical malpractice action, the plaintiffs appeal the judgment of the trial court, in accordance with the jury verdict, dismissing their lawsuit following a verdict in favor of the defendant doctor. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 6, 1995, Kimberly K. Le-Blanc gave birth to a healthy baby boy, Austin, delivered by Caesarian section by her obstetrician, Dr. William Nicholas Landry, III. Austin was the first child born to then twenty-seven-year-old Ms. LeBlanc and her husband, Albert LeBlanc. During the delivery, bleeding was noted on the left side of her uterus, and the left uterine artery was ligated, or sutured, without difficulty. Two days later, Ms. LeBlanc and the baby were discharged from the hospital. Ms. LeBlanc followed up with Dr. Landry for a two-week postpartum office visit on February 21, 1995, with normal and expected findings.

However, on March 4, 1995, Ms. Le-Blanc began experiencing heavy vaginal bleeding and was taken to the hospital by ambulance. Dr. Landry was notified, and prior to his arrival, he issued orders for blood products, medications to contract the uterus, and antibiotics. Upon Dr. Landry’s arrival and examination, Ms. Le-Blanc’s bleeding was resolving. He ordered cultures and a pelvic ultrasound, both of which had negative findings. Ms. LeBlanc responded well to the medications, and Dr. Landry diagnosed Ms. LeBlanc with subinvolution of the uterus. Ms. LeBlanc was discharged from the hospital on March 6,1995. A follow-up examination at Dr. Landry’s office on March 15, 1995, was within normal limits.

|:iOn March 22, 1995, Ms. LeBlanc was again taken to the hospital following another episode of heavy bleeding. Dr. Landry again ordered blood products and various medications. Another pelvic ultrasound was ordered, which revealed a potential bleeding site on the left side of the uterus. After obtaining Ms. LeBlanc’s consent, she was taken to surgery by Dr. Landry and placed under general anesthesia for further investigation into the source of the bleeding. Dr. Landry performed a physical examination, hysteros-copy to visualize inside the uterus, curettage to remove any remaining placenta materials inside the uterus, and a laparos-copy through the abdomen. Despite these procedures, an active bleeding site was not located. Dr. Landry continued conservative treatment, as Ms. LeBlanc was responding well. Ms. LeBlanc was discharged from the hospital on March 24, 1995. It was Dr. Landry’s opinion that Ms. LeBlanc was suffering from an atypical presentation of subinvolution of the uterus.

Upon discharge, the LeBlancs sought a second opinion from Dr. Theodore Brus-towicz, hoping to identify the source of the bleeding. Dr. Brustowicz readmitted Ms. LeBlanc to the hospital that same day with a diagnosis of chronic endometritis. Dr. Brustowicz noted no active bleeding, and he continued treatment conservatively with rest and medications similar to those ordered by Dr. Landry. Ms. LeBlanc was discharged from the hospital on March 27, 1995. A follow-up visit to Dr. Brustowicz’s office on April 3, 1995, revealed that Ms. LeBlanc was doing well, and no active bleeding was noted.

On April 9, 1995, Ms. LeBlanc suffered another episode of bleeding. When Ms. LeBlanc arrived at the hospital, Dr. Gerard DiLeo was the on-call physician for Dr. Brustowicz. Ms. LeBlanc was admitted for observation and later that evening suffered another severe hemorrhaging episode. The LeBlancs declined further conservative treatment and instead opted for a hysterectomy to end the repeated hemorrhaging events, which was performed by Dr. DiLeo on that date. Subsequently, a medical review panel was convened, which | .¡concluded that the evidence presented did not establish that Dr. Landry failed to meet the applicable standard of care. Thereafter, on September 25, 1998, the LeBlancs filed a petition for damages against Dr. Landry, asserting that Dr. Landry was negligent in failing to identify and repair the hemorrhaging uterine artery, which resulted in Ms. LeBlanc’s hysterectomy.

Following a five-day jury trial, the jury concluded that Dr. Landry was not negligent in his treatment of Ms. LeBlanc. A judgment was signed in accordance with the jury verdict on January 2, 2008'. The LeBlancs suspensively appealed, assigning the following as error:

1. The trial court erred in drafting an instruction and charging the jury with an erroneous instruction as to the standard of care applicable in medical malpractice cases.
2. The trial court erred in charging the jury with instructions as to contributory negligence and comparative fault when there was no evidence submitted by either party as to these issues, thereby creating jury confusion, and an impermissible comment on the evidence.
3. The trial court erred in failing to follow the Louisiana rules of civil procedure in the selection of the jury, in failing to alternate peremptory challenges, in failing to allow back-striking of jurors, and in prematurely swearing in the partial panel of jurors prior to completing the selection process.

DISCUSSION

In their first assignment of error, the LeBlancs assert that the jury was improperly instructed that the standard of care that Dr. Landry, a medical specialist, owed to Ms. LeBlanc was the standard of care of the locale, instead of the national standard of other like specialists. The LeBlancs contend that the jury should have been instructed that they had the burden of proving the degree of care ordinarily practiced by physicians within the same medical specialty as Dr. Landry and that the failure to exercise this degree of care resulted in harm to them. Specifically, the LeBlancs assert that they requested the jury instruction | ¿for the “national” standard of care for specialists, whereas Dr. Landry requested the “local” standard of care jury instruction. The LeBlancs further contend that the trial court then took the local standard and added some language regarding the medical specialty, but otherwise left the local standard intact, thereby clearly misleading the jury as to what actual standard of care applied. Additionally, the plaintiffs urge that the jury was further confused after it was given contrary instructions when the trial court denied that a definition of the standard of care had been provided for in the jury instructions and then stated that it was a fact to be determined by the jury. Thus, according to the LeBlancs, a de novo review of the evidence by this court is required.

The defendant asserts, however, that the jury instructions were not erroneous and that a “locality rule” was not applied. Further, Dr. Landry contends that, since the jury instructions as a whole adequately and fairly advised the jury of the applicable law and the jury was not precluded from dispensing justice, a de novo review is not indicated herein. Thus, the manifest error standard of review is applicable.

Louisiana Code of Civil Procedure article 1792 B requires the trial court to instruct jurors on the law applicable to the cause submitted to them. The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate. Adams v. Rhodia, Inc., 07-2110, pp. 5-6 (La.5/21/08), 983 So.2d 798, 804; Baxter v. Sonat Offshore Drilling Inc., 98-1054, p. 6 (La.App. 1 Cir. 5/14/99), 734 So.2d 901, 906. The sufficiency of a jury charge must be determined in light of the charge as a whole. The charge must correctly state the law and be based on evidence adduced at trial. Baxter, 98-1054 at p. 6, 734 So.2d at 906.

Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, ^[¡¡correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error. Adams, 07-2110 at p. 6, 983 So.2d at 804. Correlative to the judge’s duty to charge the jury as to the law applicable in a case is a responsibility to require that the jury receives only the correct law. Id.; Melancon v. Sunshine Construction, Inc., 97-1167, p. 6 (La.App. 1 Cir. 5/15/98), 712 So.2d 1011,1016.

Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Trial courts are given broad discretion in formulating jury instructions, and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. The rule of law requiring an appellate court to exercise great restraint before upsetting a jury-verdict is based, in part, on respect for the jury determination rendered by citizens chosen from the community who serve a valuable role in the judicial system. We assume a jury will not disregard its sworn duty and be improperly motivated. We assume a jury will render a decision based on the evidence and the totality of the instructions provided by the judge. Adams, 07-2110 at p. 6, 983 So.2d at 804.

However, when a jury is erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if the charges adequately provided the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its deliberation. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Adams, 07-2110 at p. 7, 983 So.2d at 804; Nicholas v. Allstate Insurance Company, 99-2522, p. 8 (La.8/31/00), 765 So.2d 1017,1023.

17The standard of review in determining whether an erroneous jury instruction has been given requires a comparison of the degree of error with the jury instructions as a whole and the circumstances of the case. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, p. 36 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 489, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094. Because the adequacy of jury instruction must be determined in the light of jury instructions as a whole, when small portions of the instructions are isolated from the context and are erroneous, error is not necessarily prejudicial. Furthermore, the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Thus, on appellate review of a jury trial, the mere discovery of an error in the judge’s instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case. Adams, 07-2110 at pp. 7-8, 983 So.2d at 805.

A plaintiff in a medical malpractice action is required to establish the standard of care applicable to the doctor, a violation by the doctor of that standard of care, and a causal connection between the doctor’s alleged negligence and the plaintiffs injuries. See LSA-R.S. 9:2794 A; Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, pp. 7-8 (La.10/17/94), 643 So.2d 1228, 1233. As to the applicable standard of care, LSA-R.S. 9:2794 A(l) requires that a plaintiff prove the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty.

|sIn the case sub judice, the plaintiffs objected to the following jury instruction given by the trial court regarding the standard of care:

In order to discharge the burden of proving negligence on the part of the defendant, plaintiff must prove:
(1) the degree of knowledge or skill possessed, or the degree of care ordinarily exercised by physicians licensed to practice in Louisiana and actively practicing a particular medical specialty under similar circumstances;
(2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care or diligence, along with his best judgment in the exercise of that skill;
(3) that, as a proximate result of this lack of knowledge or skill, or failure to exercise this degree of care, plaintiff suffered injuries which would not otherwise have been incurred.

It is undisputed in this matter that the appropriate standard of care for the medical specialty of obstetrics and gynecology is the degree of care ordinarily practiced by physicians within the specialty of obstetrics and gynecology, i.e., the “national” standard of care. See LSA-R.S. 9:2794 A(1). The LeBlancs contend that, although correct in striking the language “in a similar community or locale,” from the instruction, by keeping “in Louisiana,” the trial court incorrectly instructed the jury as to a local standard. While it may have been erroneous to leave “in Louisiana” in the jury instructions, when evaluating the jury instructions as a whole, we conclude that the jury was not misled or confused to the extent that it was precluded from dispensing justice. See Adams, 07-2110 at p. 7, 983 So.2d at 804.

The jury instructions were lengthy, and this was the only reference therein to the standard of care and “in Louisiana.” Shortly after the questioned instruction was given, the trial court continued its instructions regarding the standard of care for a physician practicing a medical specialty, including:

A physician is not required to exercise the highest degree of skill and care possible. He is not the insurer or guarantor of results, in the absence of an express agreement to that effect. When he undertakes the treatment of a case, he undertakes to use that skill and care ordinarily exercised by physicians in the same field of medical specialty as that in which he practices.
One of the duties of the physician is to make a diagnosis of the ailments of his patient, and if a physician fails to use the |9degree of skill ordinarily employed, under similar circumstances, by the members of his profession in the same medical specialty, in making that diagnosis, then you may conclude that he was negligent in his conduct.
If you find that the physician exercised the degree of skill ordinarily employed under similar circumstances by the members of his profession in good standing in the same medical specialty, and used reasonable care and diligence along with his best judgment in the application of his skill to the case, then you are to return a verdict in favor of the defendant in whose behalf you make such findings.
If, on the other hand, you find that the failure of the physician to treat properly was a substantial factor in bringing about or causing plaintiffs harm, and that failure was below the level of skill ordinarily employed under similar circumstances by the members of his profession in good standing and in the same medical specialty, then you must find against the defendant and in favor of the plaintiff.

Additionally, when discussing causation, the trial court instructed:

Rather, Louisiana law only requires that a physician show that he possesses the skill and competency of other physicians within his specialty....

Further, upon our review of the testimony of all of the experts, clearly no local standard was applied. There simply was no evidence presented that the standard in Louisiana differed from the standard for this medical specialty throughout the United States.

The LeBlancs contend, however, that this matter is similar to that in Todd v. Sauls, 94-10 (La.App. 3 Cir. 12/21/94), 647 So.2d 1366, twits denied, 95-0206, 95-0219 (La.3/24/95), 651 So.2d 289, wherein the third circuit concluded that the trial court gave erroneous competing jury instructions on the standard of care for both the locality standard and the standard of care for a specialist. In Todd, the defendant doctor was specifically referred to in that part of the instructions dealing with the community standard of care. Further, all three of the plaintiffs experts were from outside of Louisiana, while all seven of the defendant’s experts were from Louisiana and that of those seven, six were local doctors practicing in Alexandria. The defendant doctor also emphasized the distinction between his local experts and plaintiffs reliance on out-of-state | ,nexperts. Todd, 94-10 at pp. 4-5, 647 So.2d at 1371-72. Therefore, the trial court’s reference to “similar community or locale” standards in the jury instructions served to confuse and mislead the jury.

The Todd case is clearly distinguishable. In this matter, no reference was made to “a similar community and locale” in any part of the jury instructions. Also, although both of the plaintiffs’ experts were from outside of Louisiana, three of the four experts of the defendant, other than Dr. Landry himself, were practicing out of the state at the time of the trial. And despite the LeBlancs’ complaint that the defendant’s expert was referred to in closing arguments as “Louisiana born and educated in New Orleans,” Dr. Gary Dildy was living and practicing in Utah. Again, and unlike Todd, no evidence was presented of a different standard of care.

The plaintiffs argue, however, that the jury was also misled by the trial court’s response to a question regarding the standard of care. Subsequent to the matter going to the jury, the jury had questions regarding the standard of care. In open court, the trial court stated to the jury that the term standard of care was not defined in their jury instructions, that the court could not give them a definition, and that it was a fact that was to be determined by them. Although the trial court’s response might be considered confusing, nonetheless, we find the jury instructions in this matter as a whole adequately and fairly advised the jury of the applicable law regarding the standard of care, and the jury was not precluded from dispensing justice. See Adams, 07-2110 at p. 10, 983 So.2d at 806. Thus, a de novo review is not warranted herein.

Because we find no error in the jury instructions warranting a de novo review, the jury’s determination is subject to review for manifest error. The Louisiana Supreme Court has announced a two-part test for the reversal of a factfinder’s determinations: 1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, |nand 2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, Dep’t of Transp. and Dev., 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. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id., 617 So.2d at 882-83.

Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Indeed, where the factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Id., 549 So.2d at 845. This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. Adams, 07-2110 at pp. 10-11, 983 So.2d at 806-07.

Upon a thorough review of the record in this matter, we conclude that the jury’s finding that Dr. Landry was not negligent was not clearly wrong. All of the experts agreed that subinvolution of the uterus was involved. Further, following her treatment by Dr. Landry, Dr. Brustowicz and Dr. DiLeo, at least initially, continued to treat Ms. LeBlanc conservatively to try to save her childbearing ability. During Ms. LeBlanc’s hysterectomy, Dr. DiLeo did discover a bleeding artery. However, Dr. DiLeo was never able to give a definitive opinion as to the [^etiology of the bleeding, stating that it was “a very mysterious and very unusual presentation.” Nevertheless, Dr. DiLeo was clear that it was not an arterial venous malformation or pseudoaneurysm, as suggested by the plaintiffs’ expert, Dr. Summers. Dr. Di-Leo testified that Dr. Landry’s treatment of Ms. LeBlanc was appropriate, especially in seeking to preserve Ms. LeBlanc’s ability to bear children.

Clearly, the jury was presented with differing views of the evidence. The jury’s decision to credit the views of the defendant’s experts over that of the plaintiffs’ experts was a reasonable one. Accordingly, the jury’s conclusion that Dr. Landry did not breach the applicable standard of care was not manifestly erroneous.

The LeBlancs next contend that the trial court erred in charging the jury with instructions as to contributory negligence and comparative fault when there was no evidence on these issues, thereby creating jury confusion.

The first question on the verdict form was whether Dr. Landry was negligent in his treatment of Ms. LeBlanc. The jury specifically answered, “No.” Having exonerated Dr. Landry from liability, the jury did not reach the second interrogatory concerning any other person’s or entity’s negligence in the treatment of Ms. LeBlanc, nor did it get to the third interrogatory regarding any contributory negligence specifically on the part of the LeBlancs. Thus, the issue of anyone else’s negligence never became an issue for the jury, and there was no reason to be influenced or confused by the complained-of instructions. Under these circumstances, any error regarding the trial court’s instructions as to contributory negligence and comparative fault was harmless. See Williams v. Griffin, 422 So.2d 199, 202 (La.App. 4 Cir.), writ denied, 423 So.2d 1182 (La.1982).

Lastly, the LeBlancs complain about various aspects of the jury selection process. However, a review of the record shows no objections with regard to the method of the jury selection by the Le-Blancs prior to the entire jury having been accepted and sworn. See LSA-C.C.P. art. 1766 C. Accordingly, having failed | iato object to the action of the court and their grounds therefor, the LeBlancs are precluded from raising this issue for the first time on appeal.

CONCLUSION

For the foregoing reasons, the judgment of the trial court entered in conformity with the jury verdict is affirmed. Costs of this appeal are assessed to the plaintiffs, Kimberly K. LeBlanc and Albert LeBlanc.

AFFIRMED.

WELCH J., concurs in part and dissents with reasons.

WELCH, J.,

concurring in part and dissenting in part.

Ill respectfully concur in part and dissent in part with the majority opinion in this case. I agree with the majority’s conclusion that the plaintiffs’ failure to timely object to the trial judge’s procedure with regard to the exercise of peremptory challenges during the jury selection process constituted a waiver of that objection, even though the procedure used by the trial judge was, in my opinion, unorthodox and contrary to the method dictated by La. C.C.P. art. 1766(B).

However, I disagree with the majority’s conclusion that while “it may have been erroneous to leave ‘in Louisiana’ in the jury instructions” concerning the appropriate standard of care, the jury was not misled or confused to the extent that it was precluded from dispensing justice. The trial judge’s instruction was erroneous and incorrect as a matter of law, and I believe the record demonstrates that the instruction did not adequately guide the jury and misled the jury to the extent that it was prevented from dispensing justice.

In a medical malpractice action based on the negligence of a licensed physician, the plaintiff has the burden of proving, among other things:

The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular’ medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.

La. R.S. 9:2794(A)(1).

|2EssentiaIly, La. R.S. 9:2794(A)(1) provides two standards — one for specialist and one for general practitioners. Specialists are subject to a common standard to be discerned from within their specialty (generally referred to as “the national standard”), while general practitioners are held to the standards prevailing in the community or locale in which they practice and under similar circumstances (generally referred to as “the local standard”). See Leyva v. Iberia General Hospital, 94-0795 (La.10/17/94), 643 So.2d 1236, 1238-1239; Ardoin v. Hartford Ace. & Indem. Co., 360 So.2d 1331,1340 (La.1978).

In this case, it was not disputed that Dr. Landry was a licensed physician practicing in the specialty of obstetrics and gynecology and that the alleged acts of malpractice raised issues peculiar to the specialty of obstetrics and gynecology. Therefore, the appropriate standard of care for Dr. Landry was the degree of care ordinarily practiced by physicians within the specialty of obstetrics and gynecology, or in other words, the national standard. However, the standard of care instruction given by the trial judge, while containing some language concerning a medical specialty, specifically included a reference to a locale or community — “in Louisiana” and further incorporated the mitigating phrase — “under similar circumstances” — both of which are components of the local standard. Thus, the trial judge gave a legally incorrect instruction on the applicable standard of care.

When the trial judge’s erroneous instruction is considered in light of the fact that both of the plaintiffs’ experts were from outside of Louisiana and all of the defendant’s experts were either practicing or licensed to practice in Louisiana at the time of the alleged malpractice, I believe that the instruction was confusing and did not adequately guide the jury in its deliberation.

The confusion of the jury regarding the applicable standard of care is | sevidenced by the fact the jury specifically asked the trial judge for clarification on the standard of care, to which the trial judge responded that the standard of care was not defined in their instructions (even though a legally incorrect instruction had previously been provided), that he could not give them a definition, and that the standard of care was a fact to be determined by them. The trial judge’s response in this regard not only exacerbated the jury’s apparent confusion concerning the applicable standard of care, but it also demonstrates the trial judge’s failure to properly assist the jury by explaining the correct and applicable law.

Given the combination of all of these errors, the trial judge’s erroneous jury instructions confused the jury to the extent that it was precluded from dispensing justice and, therefore, its verdict should be set aside. Thus, I respectfully dissent in part.

      . Subinvolution of the uterus has been defined as the failure of the uterus to return to its normal size after childbirth and is an anatomical cause of delayed postpartum uterine bleeding. Mosby's Medical Dictionary, 8th edition, 2009, defines uterine subinvolution, in pertinent part, as:
      delayed or absent involution of the uterus during the postpartum period. The causes of subinvolution include retained fragments of placenta, uterine fibromyomas, and in-

        fection. Regardless of the cause of the condition, it is characterized by longer and heavier bleeding after childbirth and, on pelvic examination, a larger and softer uterus than would be expected at that time.

      . Endometritis has been defined as a cause of subinvolution of the uterus.

      . Dr. DiLeo discovered a bleeding artery while performing the hysterectomy.

      . The plaintiffs’ expert, Dr. Paul Summers, was a practicing OB/GYN in Salt Lake City, Utah, as was the defendant’s expert, Dr. Gary Dildy. Additionally, the defendant’s experts, Dr. Brustowicz and Dr. DiLeo, were living in Florida at the time of the trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Leon P. FONSECA.
    No. 2008 KW 2529.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 2009.

      Garyland Wallis, Houma, for Relator, Leon P. Fonseca.
    Camille Morvant, II, District Attorney, Joseph S. Soignet, Assistant District Attorney, for Respondent, State of Louisiana.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   PER CURIAM.

| ¡.Relator seeks review of his misdemean- or conviction for taking/possessing undersize commercial channel catfish, a violation of La. R.S. 56:326. For the following reasons, the writ application is denied.

After a bench trial, the court found relator guilty and sentenced him to 90 days in jail. The court suspended the sentence and placed relator on two years probation, with the condition that he not fish for two years. The court also sentenced relator to pay a $250.00 fine and court costs, and in default of payment, to serve 30 days in jail. Testimony at relator’s trial indicated that relator was issued a citation by Wildlife and Fisheries agents on the date of the commission of the crime, and an order of seizure for the boat was given to relator to review and sign. La. R.S. 56:33 provides for forfeiture to the Wildlife and Fisheries Commission of anything seized in connection with the violation for a second, third or subsequent violation. After relator’s conviction and sentence, an order of forfeiture was signed by the district court for forfeiture of a 17-foot aluminum Express boat used by relator to take the undersize fish and a Yamaha outboard motor.

Relator filed a motion to reconsider sentence, which was denied after a hearing. In the current writ application, relator raises the following three issues: (1) whether the trial court erred in ordering that the boat and motor be forfeited to the Louisiana Department of Wildlife and Fisheries for a class 3 violation, first offense, (2) whether the trial court erred in denying the motion to reconsider sentence, and (3) whether the trial court erred in imposing an excessive and/or illegal sentence. The basis of relator’s motion to reconsider sentence and the instant writ application is that the district court erred in signing an order of forfeiture for a boat that does not belong to relator.

Because there were questions concerning whether relator had been convicted as a first, third or subsequent offender, this Court issued an interim order for the State to file a response and invited the district court to file a per curiam addressing the following issues: (1) whether the bill of information should allege relator’s offender status; (2) whether relator was convicted and sentenced for a first offense or a third or subsequent offense pursuant to La. R.S. 56:33; and (3) whether any due process concerns are involved in seizing a vessel that belongs to a third party. See State v. Fonseca, 2008-2529 (La.App. 1st Cir.3/17/09) (unpublished). The State filed a response; the district court did not file a per curiam.

[^Relator was charged with a violation of La. R.S. 56:326(A)(7), a class 3 offense. La. R.S. 56:33 provides the penalties for class 3 violations. For a first offense, the penalty is a fine of not less than $250.00 nor more than $500.00, imprisonment for not more than ninety days, or both. See La. R.S. 56:33(1). For a third or subsequent offense, the fíne shall be not less than $750.00, nor more than $1000.00, imprisonment for not less than ninety days nor more than one hundred twenty days, and forfeiture to the commission of anything seized in connection with the violation. See La. R.S. 56:88(3).

The sentence imposed by the trial court is not in compliance with La. R.S. 56:33 because it imposes a fine of $250.00 and forfeiture of the vessel. Although forfeiture of a vessel is mandatory for a third or subsequent offender, it is not authorized for a first offender. However, the $250.00 fine assessed by the court is the penalty for a first offense.

Since the penalty depends upon the grade of the offense, we must first determine whether the grade is an element of the offense to be determined by the trier of fact or an enhancement provision applied during sentencing. See State v. Skipper, 2004-2137 (La.6/29/05), 906 So.2d 399. According to the information included in relator’s application, the charging instrument does not specify whether this is a first, second, or third offense. La. R.S. 56:33, the statute setting forth sentencing provisions for violations of class 3 violations, does not define a crime. Unlike some enhancement statutes, where subsequent convictions become felonies as the penalties grow more severe, class 3 violations under La. R.S. 56:33 remain misdemeanors even as forfeiture of the vessel used in commission of the offense becomes mandatory for a third or greater offense. Although all of the offenses upon which enhanced sentencing is based must be prohibited by Wildlife and Fisheries provisions in order for La. R.S. 56:33 to apply, the prior offenses are not required to be violations of the same criminal act. Thus, we conclude that the offender status is a sentence enhancement provision, rather than an element of the offense, and it need not be placed in the bill of information or presented to the fact finder.

La. R.S. 56:33 does not contain a procedural framework for alleging and proving the grades of the underlying charge or any predicate convictions. Nevertheless, during his trial, relator admitted that he had prior convictions. When the State asked relator how many times he had paid fines on a charge of taking or possessing undersize commercial fish, relator replied, “If I’d have to guess how many times, I’m going to guess again, five, six, seven times.” The [4prosecutor asked, “Would 18 be more accurate?” Relator stated, “That would—maybe it will be that high, too.” Hence, relator admitted during trial that this was his third or subsequent offense. At the hearing on relator’s motion to reconsider sentence, the court noted that relator is “a repeated offender by his own admission.” Thus, relator admitted to more than two prior convictions and the court sentenced him as a repeat offender. Accordingly, forfeiture was appropriate.

Regarding the due process rights of relator’s son, the purported owner of the boat, the law provides that an enforcing officer shall seize vessels used to commit any offenses prohibited by Chapter 1 of Title 56 and taken into possession by the department. See La. R.S. 56:57. Relator does not allege that the procedure used to sell the boat or that any notice requirements prior to the sale were defective. After relator was convicted and sentenced in the instant case, the court ordered forfeiture and sale of the vessel in compliance with La. R.S. 56:59.

In State v. Billiot, 254 La. 988, 229 So.2d 72 (1969), the defendants were charged with trawling in inside waters for salt water shrimp during closed season. They were found guilty as charged after trial. In connection with their sentences, the court ordered the Louisiana Wildlife and Fisheries Commission to return the trawls that were seized when the defendants were arrested. The State objected to the return of the equipment.

The defendants in Billiot asserted that the forfeiture provision deprived their wives of property (the seines seized) without due process of law because their wives possessed a community interest in the seines seized, but their wives were not parties to the proceeding and thus were deprived of their property without a hearing. The Louisiana Supreme Court found that this claim was without merit because the State has the power to deter the violation of its fish and game laws by the forfeiture of the equipment used in the illegal taking of such fish and game. The court stated, “The usual rights of appellate review apply. Such a proceeding satisfies the procedural requirements of due process for the forfeiture of the items described in the statute.” Id. at 75. The Court added that this statute applies to equipment even if it has been entrusted to the defendant by an innocent owner.

In State v. Bellande, 241 La. 213, 128 So.2d 14 (1961), the defendant pled guilty of trawling in inside waters. In connection with his sentence, defendant was ordered to forfeit the trawl nets and other paraphernalia used in connection with the violation pursuant to La. R.S. 56:507. After imposition of the sentence, testimony was heard that the activities constituting the crime for which the defendant was convicted and sentenced “were conducted without the permission and contrary to |fithe instructions of the owners of the equipment used.” Id. at 15. The trial court directed the forfeited nets be returned to their owners. The State, through the Wildlife and Fisheries Commission, appealed. The Louisiana Supreme Court noted that under the penalty provisions of the statute, the trial court was without authority to issue the order directing the return of the trawl nets to the owners because the right to dispose of the forfeited equipment is vested by statute in the Wildlife and Fisheries Commission.

At the hearing on the motion to reconsider sentence, relator testified that the boat belonged to his son. The registration completed by the boat dealership was introduced into evidence, and Kim Fonseca’s name was on the dealer’s registration sheet.

In the instant case, La. R.S. 56:33(3) specifically provides that upon a third or subsequent violation of the statute, forfeiture is ordered to the Wildlife and Fisheries Commission of anything seized in connection with the violation. La. R.S. 56:59 provides the procedure for disposition of vessels and other seized equipment. Seized vessels may be released from seizure upon the “owner or person in charge” furnishing bond with security as fixed and approved by the court. See La. R.S. 56:59(A). If the penalty for the offense charged includes forfeiture, once the defendant is convicted, “the court shall order the thing forfeited to the department and sold at public auction by the sheriff without necessity of appraisement but after advertisement as prescribed by law for the sale of movable property seized under a writ of fieri facias.” See La. R.S. 56:59(A). As an alternative, the court may, on petition of the secretary, order suspension of operation of the item seized. See La. R.S. 56:59(A). La. R.S. 56:59(C) further provides that proceedings under this Section may be in rem against the item seized, and when so instituted shall be conducted in accordance with La. R.S. 34:801 through 34:817. This Section further provides, “Notice of an in rem proceeding shall be given by the department as provided in R.S. 34:806 and persons interested may file answers as provided in R.S. 34:808. If no answer is filed, default may be taken as provided in R.S. 34:809.”

Relator does not allege that the actual forfeiture proceeding was defective. During the hearing on the motion to reconsider sentence, the court referenced La. R.S. 56:59, and stated, “The Court shall order the thing forfeited, which I have done, and sold at public auction.” Relator’s son could have asserted his right as the owner of the boat during the proceedings leading to the sale of the boat, but apparently he did not do so.

| ^Relator also alleges that his sentence is illegal and excessive because forfeiture is not included as a penalty for the offense of which relator was convicted. Relator admitted that he is a third or subsequent offender, and he was sentenced as a repeat offender. Imposition of the $250.00 fine is illegally lenient for a third or subsequent offense. However, it is not mandatory that this Court correct the portion of relator’s sentence imposing the fine. See State v. Price, 2005-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112, writ denied, 2007-0130 (La.2/22/08), 976 So.2d 1277. Moreover, as a third or subsequent offender, forfeiture to the commission of anything seized in connection with the violation is required under La. R.S. 56:33(3). Thus, forfeiture of the boat was within the sentencing guidelines.

A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Hurst, 99-2868 (La.App. 1st Cir.10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La.10/5/01), 798 So.2d 962. The district court noted that relator is a third or subsequent offender pursuant to La. R.S. 56:33(3), and the boat was ordered forfeited pursuant to La. R.S. 56:59. The district court did not abuse its discretion in ordering forfeiture of the boat.

Accordingly, relator’s writ application is denied.

GUIDY, J. dissents.


author: GAIDRY, J.

text:
    FERN CREEK OWNERS’ ASSOCIATION, INC. and Diane Marcus Wife of/and Kenneth Huffman v. The CITY OF MANDEVILLE.
    No. 2008 CA 1694.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 2009.
    Rehearing Denied July 31, 2009.

      William M. Magee, Patrice W. Oppen-heim, Covington, Louisiana, for Plaintiffs/Appellees Fern, Creek Owners’ Association, Inc. and Diane Marcus, wife of/and Kenneth Huffman.
    David S. Cressy, Sr., Mandeville, Louisiana, for Defendant/Appellant, City of Mandeville.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

[2A municipality that purchased a lot in a subdivision subject to building restrictions appeals a judgment in favor of a homeowners association, issuing a permanent injunction against the municipality. The homeowners association has answered the appeal, seeking delinquent assessments and additional attorney fees. For the following reasons, we amend the trial court’s judgment and affirm it as amended. We also grant the answer to the appeal in part and deny it in part.

FACTUAL AND PROCEDURAL BACKGROUND

The City of Mandeville (the City) is an incorporated municipality of St. Tammany Parish. The Golden Glen Subdivision (Golden Glen) is located just within the City’s corporate limits, bounded by the Fern Creek Subdivision (Fern Creek) just outside the corporate limits.

Fern Creek was developed by Friends Development, L.L.C. in 1995, and consisted of twelve lots. The developer established building restrictions in a document entitled “Covenant, Deed Restrictions and Obligations” and dated December 29, 1995. By the same document, the developer declared the creation of the Fern Creek Owners Association (the Association), a nonprofit corporation to consist of all owners of property in Fern Creek. The document establishing the building restrictions was filed in the conveyance records of St. Tammany Parish on February 16, 1996, after eleven of the twelve lots had already been sold.

Lot 12 in Fern Creek is bounded on its south side by lots 57 through 63 in Golden Glen, and by Chinchuba Bayou (or Creek) on a portion of its northwest side. Although a small portion of the lot includes wetlands, the majority of the lot does not. A portion of what became Lot 12 in Fern Creek was originally reserved by the developer for possible sale to the owners of |sfour adjacent lots in Golden Glen (Lots 60 through 63), but no sales were made. Lot 12 was first acquired by David Scalfano, one of the principals of Friends Development, L.L.C., and his wife, Kathyrn Scalfa-no. In 2000 or 2001, Mr. Scalfano erected a six-foot wood privacy fence across a portion of Lot 12’s boundary with Golden Glen.

On July 15, 2000, the owners of all twelve lots executed a document expressly adopting and accepting the building restrictions established by the developer, and ratifying the developer’s actions in that regard.

On July 10, 2002, the Scalfanos sold Lot 12, which was still vacant, to Kevin and Kimberly Vanderbrook. On September 3, 2002, Mr. Vanderbrook wrote to the Association’s Architectural Control Committee, requesting its approval to make “minor improvements,” including the construction of a wood “privacy fence,” six feet in height, along the front left (south) portion of his property. His expressed intent was to “continue the existing privacy fence” along a portion of the property line and to “screen out the back of homes in Golden Glen and prevent foot traffic from these homes.” An elevation diagram of the proposed privacy fence included the statement that it was “to match [the] existing fence.” Approval was also requested for a different “estate type” of fence along the left rear property line. A plat, indicating the locations of the proposed fences in relation to the locations of the existing sections of fence, was also included with the letter. On September 25, 2002, Diane Huffman replied on behalf of the Association, advising Mr. Vanderbrook of the Committee’s approval “for a wood fence along your property line common with Golden Glen.” However, the proposed fence was never constructed by the Vanderbrooks.

|,[On July 17, 2004, certain residents of Kimberly Drive in Golden Glen sent a letter to the City’s mayor, advising of their joint opposition to the establishment of a servitude on their properties, and expressing their refusal to allow their properties to be used for emergency egress in the event of flooding. They emphasized that the wetlands portion of Lot 12 “plays an important role in minimizing the local flooding by providing valuable storm water drainage[,]” and that Lot 12 “directly abuts the bayou.” They further requested that the City purchase Lot 12 “at fair market value,” expressing their belief that “[i]t [was] imperative that the City of Mandeville have exclusive control over the entire property” in order to allow “unobstructed access” for emergency services and “an unobstructed emergency exit route” for Kimberly Drive residents “during high water.” They emphasized that the City “needed to protect the current tax payers [sic ] on Kimberly Drive” and should therefore purchase Lot 12 “for the benefit of the residents of Golden Glen.”

Sometime in the summer of 2004, the Vanderbrooks hired a contractor to install a gravel driveway and a culvert on Lot 12. On August 8, 2004, the Architectural Control Committee wrote to the Vander-brooks, advising them that the driveway, culvert, and a wire fence placed on Lot 12 were not in compliance with the building restrictions. It advised the Vanderbrooks that if they did not submit “acceptable plans” relating to the driveway and culvert by August 30, 2004, “the driveway, culvert, and roadway material must be removed.”

After attempting to negotiate a drainage plan with the Vanderbrooks allowing it access to Lot 12, the City at one point proposed expropriation of |fiLot 12, but took no further action toward that end. Instead, it initiated overtures to the Van-derbrooks for the purchase of Lot 12 by the City. Learning of the potential sale, Association members met with Mr. Price for the purposes of ascertaining the City’s intent and voicing their concerns about use of the property. The City Council eventually adopted an ordinance on September 23, 2004, authorizing the mayor to negotiate and execute documents for the purchase of Lot 12. The preamble to the ordinance expressed the City’s intent in acquiring the lot in these terms: “[t]he City ... is desirous of obtaining ownership of Lot 12, Fern Creek Estates, City of Mandeville [sic ], ... due to the importance of the said lot for drainage purposes[.]” The ordinance was approved by the mayor on September 27, 2004.

On October 4, 2004, Ms. Huffman, as president of the Association, wrote to the Vanderbrooks, sending a copy to the City, advising them that the Association had been notified of the proposed sale of Lot 12, and reiterated the notice of noncompliance with the building restrictions described in the Architectural Control Committee’s letter of August 8, 2004. The Vanderbrooks and the City were advised that if “acceptable plans” were not submitted by November 1, 2004, the driveway, culvert, and roadway material would have to be removed, and if not so removed, the Association would undertake to do so as authorized by the building restrictions.

On October 14, 2004, the City purchased Lot 12 from the Vanderbrooks. According to the act of sale, the sale was subject to “[t]he restrictions [,] covenants, and setbacks, contained in [the] subdivision plan.” By January of 2005, the privacy fence erected by Mr. Scalfano had been | (¡disassembled, with piles of wooden fencing stacked in piles and fenceposts with attached cement lying along the property line between Lot 12 and Golden Glen.

On April 13, 2005, the Association, Ms. Huffman, and her husband, Kenneth Huffman, filed a petition against the City, seeking injunctive relief, damages, and attorney fees. It was alleged that shortly before the City’s purchase of Lot 12, its predecessor in title (the Vanderbrooks) performed certain acts in violation of the building restrictions, including building a “road” and installing a culvert without pri- or approval from the Association’s Architectural Control Committee.

In its answer, the City admitted its ownership of Lot 12, but alleged that it could not be in violation of any building restriction “as it did not own the property when the alleged violations occurred” and the violations were performed by a third party. The City further alleged that the building restrictions were inapplicable by reason of the public use intended by the City, and that the public use was not in violation of the restrictions.

On January 3, 2007, the Association filed a supplemental and amending petition with leave of court. In addition to its prior allegations regarding the violations existing at the time of the City’s purchase, it alleged that the City had committed or permitted additional violations of the building restrictions, including removal of the existing privacy fence, permitting use of Lot 12 by Golden Glen residents for parking and storage, |7failure to pay dues and assessments, and permitting Golden Glen residents to dump debris. In addition to injunctive relief and damages, the Association also sought declaratory judgment that the building restrictions were applicable to Lot 12 and enforceable against the City, despite its status as a public body or political subdivision. The City reiterated its general denial of liability, alleging that any violations of the building restrictions were attributable only to the prior owners.

On January 31, 2007, the Association filed a motion for partial summary judgment, seeking a summary declaratory judgment on the issue of the applicability of the building restrictions to Lot 12 and to the City as owner. The City did not oppose the granting of judgment as prayed for by the Association. The trial court signed the partial summary judgment on July 11, 2007, declaring that the building restrictions, including the addendum, were applicable to Lot 12 and the City as its owner.

Trial on the merits was conducted on April 28, 2008. In its judgment, the trial court granted the following injunctive relief, in addition to the award of $5,000.00 in attorney fees to the Association:

1.The City ..., its agents, employees and all other persons, firms or corporations acting or claiming to act on its behalf, are permanently enjoined from continuing to allow any violations of the restrictive covenants ..., and any violation of these restrictive covenants brought to the Court’s attention will result in the Court assessing an appropriate fine against the City ... for such violation.
2. The City ... is ordered to timely pay the homeowner’s dues each quarter as billed by the Homeowner’s [sic ] Association.
3. The City ... is ordered to maintain Lot 12 ... as a residential parcel as required by the restrictive covenants referred to herein;
4. The City ... is ordered to remove from Lot 12 ..., and prevent the presence of, all equipment and machinery of any kind other than as allowed by the restrictive covenants.
|s5. The City ... is ordered to remove all debris and/or trash from Lot 12 ... within thirty (30) days of this judgment;
6. The City ... is ordered to rebuild the 6 foot privacy fence on the boundary line of Lot 12 ... with Golden Glen ... as it existed on the date of the acquisition of Lot 12 ... by the City....
7. The City ... is ordered to remove the drainage pipe facilitating drainage from Golden Glen ... onto Fern Creek or, in the alternative, bury a culvert allowing the waste to flow into an appropriate drainage system for said drainage, all within 45 days of this judgment.
8. The City ... is further ordered that [sic ] it may not use nor allow anyone else to use Lot 12 ... as a parking lot, landfill, storage for debris of any kind, moving equipment or machinery or any other use that is not allowed by the [building restrictions] ...[.]

The City has appealed devolutively, and the Association has answered the appeal.

ASSIGNMENTS OF ERROR

We summarize the City’s assignments of error on the part of the trial court as follows:

1. The trial court erred in finding that the City violated any building restrictions (or restrictive covenants) and wrongfully enjoined any continuing violation.

2. The trial court’s judgment is vague and enjoins activities that do not violate the building restrictions.

3. The trial court erred in finding that the City used Lot 12 other than as resi-dentially-zoned property.

4. The trial court erred in enjoining the presence of any equipment and machinery of any kind other than as allowed by the building restrictions as such a condition or activity is not prohibited by the restrictive covenants.

lfl5. The trial court erred in ordering the City to reconstruct the six-foot privacy fence between Lot 12 and Golden Glen, as the evidence did not establish its prior existence or location and the restrictive covenants do not require that it be rebuilt.

6. The trial court erred in finding that the drainage pipe violated any building restriction and in ordering its removal.

7. The trial court erred in finding that the City stored any debris on Lot 12.

8. The trial court erred in finding that the Fern Creek Architectural Control Committee had any authority to approve the removal (as opposed to the erection) of a fence.

9.The trial court erred in awarding attorney fees, as there was no showing of a violation of a building restriction.

In its answer to the appeal, the Association contends that the trial court erred in failing to award it the unpaid homeowners association dues (quarterly assessments) and in failing to award it the full amount of attorney fees and costs incurred by the Association. Finally, the Association seeks an additional award of attorney fees incurred in connection with the City’s appeal.

STANDARD OF REVIEW

The issuance of a permanent injunction takes place only after a trial on the merits, in which the burden of proof must be founded on a preponderance of the evidence. State Mach. & Equip. Sales, Inc. v. Iberville Parish Council, 05-2240, p. 4 (La.App. 1st Cir.12/28/06), 952 So.2d 77, 81. Thus, the standard of review for the issuance of a permanent injunction is the manifest error standard. Mary Moe, L.L.C. v. La. Bd. of Ethics, 03-2220, p. 9 (La.4/14/04), 875 So.2d 22, 29.

| min order to reverse a factual determination by the trier of fact, the appellate court must apply a two-part test: (1) the appellate court must find that a reasonable factual basis does not exist in the record for the finding; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State through Dep’t. of Transp. & Dev., 617 So.2d 880, 882 (La. 1993). If the findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

DISCUSSION

Building restrictions, or “restrictive covenants” as they are generally known in the common law and occasionally termed in Louisiana, are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. La. C.C. art. 775. They may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of the general plan. La. C.C. art. 778.

Building restrictions generally fall into two classes: (1) true “building” restrictions, which limit the type and size of structures, and (2) “use” restrictions, which limit the uses which may be made of the immovable and its structures. See Smith v. DeVincent, 322 So.2d 257, 261 (La.App. 2nd Cir.1975). A use restriction may merely involve restraints on the type of use of an immovable, without necessarily imposing restrictions | non the type or size of building on the property. See La. C.C. art. 775, Revision Comments — 1977, (b).

Building restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovables. La. C.C. art. 776. An acquirer of immovable property burdened with recorded building restrictions is presumed to have notice of them. La. C.C. art. 776, Revision Comments— 1977, (c).

Building restrictions constitute real rights running with the land, and the remedy of landowners seeking to prevent a violation of the restrictions by another is by injunction. Cosby v. Holcomb Trucking, Inc., 05-0470, pp. 6-7 (La.9/6/06), 942 So.2d 471, 475 (quoting Oakbrook Civic Ass’n, Inc. v. Sonnier, 481 So.2d 1008, 1010 (La.1986)); see also La. C.C. art. 779. Generally, doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. See La. C.C. art. 783. However, the provisions of the Louisiana Homeowners Association Act, La. R.S. 9:1141.1, et seq., supersede the Civil Code articles on building restrictions in the event of a conflict. La. C.C. art. 783. Regarding interpretation of building restrictions on property regulated by a homeowners association, La. R.S. 9:1141.4 provides that “[t]he existence, validity, or extent of a building restriction affecting any association property shall be liberally construed to give effect to its purpose and intent.” (Emphasis added.)

For purposes of the Louisiana Homeowners Association Act, a homeowners association is defined as “a nonprofit corporation, unincorporated association, or other legal entity, which is created pursuant to |12a declaration, whose members consist primarily of lot owners, and which is created to manage or regulate, or both, the residential planned community.” La. R.S. 9:1141.2(5). Each owner of a lot in the planned community regulated by a homeowners association is a mandatory member of that association, by virtue of such ownership. La. R.S. 9:1141.2(7).

Building restrictions affecting property regulated by a homeowners association “may include the imposition of an affirmative duty, including the affirmative duty to pay monthly or periodic dues or fees, or assessments for a particular expense or capital improvement, that are reasonable for the maintenance, improvement, or safety, or any combination thereof, of the planned community.” La. R.S. 9:1141.5(B). A homeowners association’s community or organizational documents, including any building restrictions, “shall have the force of law between the homeowners association and the individual lot owners and as between individual lot owners.” La. R.S. 9:1141.8. Remedies for breach of any obligation imposed upon lot owners or a homeowners association shall include damages, injunctions, or such other remedies as are provided by law. Id.

The Fern Creek Building Restrictions

Article II of the building restrictions is entitled “Use of Property.” Paragraph 1 of that article states that the subdivision was approved by the St. Tammany Parish planning commission for single-family use, and that the use of its lots was restricted to those uses allowed for property zoned A-2. Paragraph 2 further provides that “[a]ll improvements on the lots shall be made in accordance with Article VI below and thereafter maintained by the owner in a clean, safe, attractive condition and in good repair.” (Emphasis added.)

|13Article III, “Prohibited Activities,” includes the following relevant provisions:

3. No accumulation of storage of litter, lumber, scrap metal, building materials, new or used building materials of any kind shall be permitted in open areas of any lot, provided, however, that the storage of building materials and equipment shall be permitted during periods of new construction, remodeling and/or renovations of any improvements located upon any lot.
4. ... [N]o junk vehicle, commercial vehicle, trailer truck, camper, camp truck, house trailer, mobile home, or other prefabricated trailer, house trailer, camper or boat or other machinery or equipment of any kind or character shall be kept upon any lot or in the street adjoining any lot in the subdivision; provided, however, that this restriction shall not apply to vehicles, mobile homes, boats, machinery and equipment enclosed and kept within an enclosed storage room or garage, but not in the front yard; ... Boats may be parked on the side yard, if, behind a wooden fence, and not visible from the front street.
6. No owner will do or permit to be done any act upon his property which may be, or is, or may become, a nuisance to the other owners or which may be unsafe and hazardous.
7. Individual water supply systems shall not be permitted unless approved by the Architectural Control Committee.
8. No unsightly objects shall be permitted to remain upon any part of the lots and no refuse pile or trash shall be allowed to be placed or to remain anywhere thereon, including vacant lots.
9. No changes in the elevations of the land, other than changes to meet government regulations, shall be made on the property without prior approval of the Architectural Committee.
11. No sewerage treatment system permitted other than the community system provided for the entire subdivision.
12. No work of any kind can be done on the property without the prior approval of the Architectural Committee.

(Emphasis added.)

|14 Article VI. “Architectural Control and Construction,” includes the following relevant language:

1. Architectural Control No structure shall be erected on any lot or elsewhere on the Property by any person, firm or corporation without the approval of the Architectural Control Committee .... For purposes of this section, the word “structure” shall be broadly construed and shall include but not be limited to buildings, swimming pools, fences, sheds, walls, porches, signs, towers, driveways, walks, television antennae and dishes, storage facilities ... and any other thing erected or placed mi any part of the property. For purposes of this section, any addition to a present structure shall be considered a structure and shall require architectural approval.... In addition to the matters otherwise provided herein, architectural control shall include the approval of a structure’s size, structural construction materials, exterior appearance and location on the lot.

Although Article VIII, “Annual Assessments and Carrying Charges,” primarily deals with the purposes and mechanism for the issuance of monthly and special assessments to members of the Association, it also sets forth the following provision, which reiterates and clarifies each member’s duty of maintenance of his property:

2. Special Assessments
(b) Grounds and Facility Maintenance Should any property owner fail to properly maintain its lot or in any other manner allow its property to become detrimental to the aesthetic scheme of the Subdivision or adjoining property, or violate these restrictions in any manner, then the Association, its agents, employees, and/or contractors shall have the right to enter upon their property in order to take such corrective actions as will alleviate the situation.

(Emphasis added.)

Article XII, “Special Provisions,” Paragraph 8(a) reiterates the restriction that “[n]o fence of any kind shall be constructed on any lot without the prior approval of the Fern Creek Architectural Control Committee.”

| ifl'he City’s Passive Role in the Alleged Violations

The City’s first assignment of error addresses the nature of its role in relation to the alleged violations of the building restrictions. The City argues that it may not be held accountable for violations of building restrictions initiated by its predecessor in title (the Vanderbrooks) or other third persons. It also contends that because it neither actively used its property nor performed any work on it, it cannot be held responsible for any work, structure, or improvement done before it purchased the property. In effect, the City argues that its passive status as the owner of Lot 12 cannot expose it to injunctive relief or impose affirmative duties upon it for the prior acts of others in violation of the building restrictions.

This assignment of error plainly has no merit. The building restrictions were properly recorded prior to the City’s purchase, and the act of sale makes specific reference to them. Thus, they are a continuing charge upon the property and binding upon the City as a subsequent owner. See La. C.C. art. 776, Revision Comments — 1977, (c); La. R.S. 9:1141.6(C)(1). The City’s argument runs counter to the fundamental principles that building restrictions constitute real rights running with the land, analogous to predial servitudes. See La. C.C. art. 777. In that regard, it should be noted that when a building restriction on particular immovable property is terminated by the lapse of two years from commencement of noticeable violation, it is the property that is freed of the restriction, rather than the owner. See La. C.C. art. 781. But because it is the owner of the burdened property who is subject to the charges and affirmative duties imposed, the owner of the property in continuing violation of a building restriction is considered the “violator” for purposes of injunctive relief and ^damages. See La. C.C. arts. 775 and 778; see also La. C.C. art. 779, Revision Comments— 1977, (d).

Vagueness or Lack of Detail of Injunctive Relief

In its second assignment of error, the City complains that the trial court’s judgment is “vague” and enjoins activities not violative of the building restrictions. Louisiana Code of Civil Procedure article 3605 requires that “[a]n order granting ... a final injunction ... shall describe in reasonable detail, and not by mere reference to the petition and other documents, the act or acts sought to be restrained.” (Emphasis added.) See, e.g., Miller v. Knorr, 553 So.2d 1043 (La.App. 4th Cir. 1989), in which the judgment failed to describe an act sought to be restrained. We agree that the first numbered decretal paragraph of the judgment is impermissi-bly vague and overbroad based upon the foregoing standard, and should describe the enjoined activities with more detail, limited to those violations of the building restrictions that were proven at trial. We will accordingly amend that paragraph of the judgment to limit the injunction to those violations relating to the payment of Association dues or assessments by the City, the driveway, culvert, fence, equipment and machinery, debris and trash, and drainage pipe, as described in the following paragraphs. We will also amend certain other paragraphs of the judgment to provide the detail required by La. C.C.P. art. 3605, in conformity with the intent and tenor of the judgment and the evidence.

The Driveway and Culvert

The City does not seriously contest the fact that the driveway and culvert were installed on Lot 12 by the Vanderbrooks without prior |17approval by the Architectural Control Committee. The trial court’s judgment does not make express reference to the existence of the driveway and culvert. However, implicit in its decision that the City be enjoined from “continuing to allow” violations of the building restrictions is the determination that those violations commencing prior to the City’s purchase be enjoined, and both parties’ briefs seem to acknowledge this point by addressing the issues relating to the driveway and the culvert, which issues were thoroughly addressed at trial. In accordance with our authority under La. C.C.P. art. 2164, we will therefore amend the judgment to provide that the City is ordered to remove the unapproved driveway and culvert within ninety (90) days of the date of issuance of this opinion.

Residential Use

In its third assignment of error, the City contends that the trial court erroneously found that it had used or allowed Lot 12 to be used as other than residen-tially-zoned property under the applicable zoning classification of St. Tammany Parish. The injunctive relief granted by the trial court simply requires the City to “maintain Lot 12 ... as a residential parcel as required by the restrictive covenants [building restrictions].” The building re-strictions in turn expressly refer to the zoning requirement of single-family use and the A-2 “suburban district” zoning classification.

The evidence at trial showed that the City expressly acquired Lot 12 for “drainage purposes” and possibly for emergency access and evacuation, and that violations of the building restrictions related to the residential character and general plan of the subdivision existed. We find no error in the trial court’s decision to impose the injunctive relief described above. However, we will amend the judgment to clarify that relief in appropriate detail.

| Machinery and Equipment

In its fourth assignment of error, the City contends that the trial court erred in enjoining the presence of equipment and machinery of any kind other than as allowed by the building restrictions, as the building restrictions contain no such prohibition. We disagree. Article III, Paragraph 4 directly addresses the presence of machinery and equipment not stored within approved storage rooms or garages, and Paragraph 8 of the same article otherwise limits the visible presence of equipment to “periods of new construction, remodeling, and/or renovations of any improvements located upon any lot.” The evidence and testimony support the trial court’s determination that the City at the very least tacitly allowed the storage or parking of construction equipment, machinery, a boat and boat trailer, and motor vehicles upon Lot 12. This assignment of error has no merit. However, in line with our prior determination that the injunctive relief should be more specific, we will also amend the judgment to more particularly describe the character of the prohibited machinery and equipment.

The Fence

In its fifth assignment of error, the City contends that the evidence at trial failed to demonstrate the existence, type, or location of the fence supposedly existing at the time of its purchase of Lot 12. The City is plainly in error on this point. Mr. Scalfano unequivocally testified that he personally erected a wood privacy fence across a portion of Lot 12 adjoining Golden Glen. Mr. Vanderbrook confirmed the existence of that fence when he and his wife purchased Lot 12 from the Scalfanos. The undisputed testimony of Mr. Scalfano, Mr. Vanderbrook, Ms. Huffman, and Mr. Huffman, as well as the diagram and plat submitted by Mr. [ )9Vanderbrook with regard to his proposed fence, proved the existence, appearance, and location of the six-foot wood privacy fence erected by Mr. Scalfano.

We agree with the trial court’s conclusion that the removal of the existing privacy fence erected by Mr. Scalfano required the approval of the Committee, and the unapproved removal of that fence, whether by the City or by third parties, constituted a violation of the building restrictions, warranting injunctive relief. This interpretation accords with the plain intent of the building restrictions that the owners properly maintain the improvements on their property in good repair, and that any “work” undertaken that would affect the residential character and existing aesthetic scheme of the subdivision be approved by the Architectural Control Committee. Where a building restriction is couched in general terms, the reasonableness of the association’s enforcement of the restriction in a particular case may be weighed by the courts, and as long as the discretionary power is exercised reasonably and in good faith, the restriction is enforceable. See Cosby, 05-0470 at pp. 8-9, 942 So.2d at 476-77; Í626 Corp. v. Memam, 329 So.2d 885, 889 (La.App. 1st Cir.), writ refused, 332 So.2d 800 (La. 1976). This interpretation also comports with the statutory mandate of La. R.S. 9:1141.4 that the courts liberally construe the extent of a building restriction regulated by a homeowners association 12n“to give effect to its purpose and intent.” The trial court’s decision on this issue is correct, and this assignment of error has no merit.

The Drainage Pipe

The uncontradicted testimony and documentary evidence confirmed that the City permitted the owners of Lot 62 in Golden Glen to install a plastic pipe draining water from their swimming pool onto Lot 12. A photograph documenting the open drainage pipe coming from the direction of the swimming pool and the shallow drainage ditch was also introduced into evidence. In its oral reasons for judgment, the trial court made a point of emphasizing the drainage pipe’s obvious character as a violation of the building restrictions. We agree. Whether characterized as a nuisance, unsightly object, “individual water supply system,” or individual “sewerage treatment system,” or any combination of the foregoing, the drainage pipe is obviously out of character with the general plan of Fern Creek. The trial court’s finding in that regard is not manifestly erroneous. This assignment of error has no merit.

Unsightly Objects, Refuse Piles, Debris, and Trash

The evidence and testimony clearly support the trial court’s finding that the City permitted debris and trash to be placed and to remain on Lot 12, in direct violation of Article III, Paragraph 8, and possibly other provisions requiring maintenance of property in clean and attractive condition. The trial court’s finding is not manifestly erroneous. The City’s seventh assignment of error has no merit.

Attorney Fees

The building restrictions provide that if the Association files suit to enforce any provision of the building restrictions, “[t]he party cast in judgment shall pay all attorney’s, fees and costs.” As we find no manifest |2ierror in the trial court’s express and implicit findings of violations of the building restrictions, warranting the injunctive relief granted, we likewise find no error in its determination that an award of attorney fees was appropriate under the express terms of the building restrictions. The City’s assignment of error on this issue has no merit.

As to the Association’s answer to the appeal, seeking an increase in the trial court’s award of attorney fees, we note that despite a provision fixing attorney fees in the parties’ contract, courts may inquire as to the reasonableness of the attorney fees as part of their prevailing, inherent authority to regulate the practice of law. City of Baton Rouge v. Stauffer Chem. Co., 500 So.2d 397, 401 (La.1987). In making an award of attorney fees, a court is not bound by the amount actually charged by the attorney. Jackson Square Toume Home Ass’n., Inc. v. Hamigan, 38,289, p. 10 (La.App. 2nd Cir.3/3/04), 867 So.2d 960, 965-66; see also La. R.S. 9:1145. A reasonable attorney fee is determined by the facts of an individual case. The trial court has the ultimate discretion to determine the amount of attorney fees that may be recovered, based on the court’s own knowledge, the evidence, and the court’s observation of the case and the record. Filson v. Windsor Court Hotel, 07-0755, pp. 6-7 (La.App. 4th Cir.7/23/08), 990 So.2d 63, 67. We have reviewed the trial court’s award of attorney fees based upon the record, and find no abuse of its discretion or other error. Accordingly, we deny in part the Association’s answer to the appeal.

Further, although we disagree with the Association’s contention that the City’s appeal is frivolous and that additional attorney fees should be awarded on that basis, we agree that the Association is entitled to additional attorney fees by virtue of the language of the building | ^restrictions. After review of the record and the briefs and after consideration of oral argument, we award the Association additional attorney fees of $1,500.00 in connection with the appeal and its answer to the appeal.

Unpaid Assessments or Dues

The trial court ruled against the Association on its claim for recovery of unpaid quarterly assessments or dues from the City, on the grounds that the supporting statement of account was not readily understandable and therefore nonproba-tive of the claimed amount due from the City. We must respectfully disagree. Our review of the record, including the statement itself and explanatory testimony of Ms. Huffman, essentially uncontradicted as to the amount, convinces us that the trial court was clearly wrong in failing to award the Association the amount of $1,420.00 owed as of the time of trial. We will accordingly amend the trial court judgment to award that amount, together with the conventional annual interest of 12% authorized on said amount by the building restrictions.

DECREE

The judgment of the trial court, rendered on June 3, 2008, is amended in the following respects:

Paragraph 1 is amended to read as follows:

1. The City of Mandeville, its agents, employees and all other persons, firms or corporations acting or claiming to act on its behalf, are permanently enjoined from violating or continuing to allow violations of the building restrictions or restrictive covenants set forth in the Covenant, Deed Restrictions and Obligations for Fern Creek Subdivision in St. Tammany Parish, relating to the driveway, culvert, fence, equipment and machinery, debris and trash, and drainage pipe on Lot 12 of Fern Creek Subdivision, as further described in this judgment, and any such violations of these restrictive covenants brought to the Court’s attention will result in the 12sCourt assessing an appropriate fine against the City of Mandeville for such violation. The City of Mandeville is further ordered to remove the unapproved driveway and culvert on Lot 12 within ninety (90) days of the date of issuance of the opinion of the Court of Appeal, First Circuit.

Paragraph 3 is amended to read as follows:

3. The City of Mandeville is ordered to maintain Lot 12, Fern Creek Subdivision for single-family residential use in accordance with the Covenant, Deed Restrictions and Obligations for Fern Creek Subdivision in St. Tammany Parish, and in accordance with the permitted uses of Section 2.04 of the zoning ordinances of the Parish of St. Tammany applicable to A-2 Suburban Districts, insofar as they are compatible with the Covenant, Deed Restrictions and Obligations for Fern Creek Subdivision. Any “miscellaneous uses” or “similar and compatible uses,” other than residential uses, of Lot 12 under Section 2.04 must otherwise comply with the building restrictions or restrictive covenants for Fern Creek Subdivision, including but not limited to the requirement that the City properly maintain its lot and in no manner allow its property to become detrimental to the aesthetic scheme of the Subdivision or adjoining property.

Paragraph 4 is amended to read as follows:

4. The City of Mandeville is ordered to remove from Lot 12, Fern Creek Subdivision, and prevent the keeping, storage, or parking of all junk vehicles, commercial vehicles, trailer trucks, campers, camp trucks, house trailers, mobile homes, boats, trailers, tractors, other motor vehicles, front-end loaders, “Bobcats,” and other construction equipment and machinery, except as authorized by Article III, Paragraph 4 of the Covenant, Deed Restrictions and Obligations for Fern Creek Subdivision.

The answer of the plaintiff-cross-appellant, the Fern Creek Owners Association, Inc., is granted in part, and the judgment of the trial court is further amended to add the following:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment rendered in favor of the plaintiff, Fern Creek Owners Association, Inc., for the sum of ONE THOUSAND FOUR HUNDRED TWENTY AND NO/100 DOLLARS ($1,420.00), representing unpaid quarterly dues or assessments, against the defendant, the City of Mandeville, said sum to bear interest of twelve percent (12%) per an-num, in accordance with Article VIII, Paragraph 3 of the Covenant, Deed Restrictions and Obligations for Fern Creek Subdivision.

|24As amended, and in all other respects, the judgment of the trial court is affirmed.

Finally, the plaintiff-cross-appellant, the Fern Creek Owners Association, Inc., is awarded additional attorney fees of ONE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($1,500.00) in connection with its defense of this appeal, and judgment is rendered accordingly against the defendant-appellant, the City of Mandeville. All costs of this appeal are assessed to the defendant-appellant.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

KUHN and GUIDRY, JJ„ concur.

      . Included in the same document was an amendment (not relevant for our purposes) related to the minimum area or square footage of living areas for residences.

      . We emphasize that this is not a case of expropriation or annexation of immovable property by a municipality.

      . For some reason, not apparent from the record, the supplemental and amending petition omits any reference to Mr. and Ms. Huffman as plaintiffs. In its brief, the City makes objection to the trial court’s ruling permitting the filing of the supplemental and amending petition, on the grounds that its allegations do not comply with the terms of La. C.C.P. art. 1155, governing supplemental (as opposed to amended) pleadings. Leaving aside the issues of whether the City has properly assigned the trial court’s action as error and whether its challenge is timely, we conclude that the trial court did not abuse its discretion in permitting the filing of the supplemental and amending petition. See White v. Cumis Ins. Soc’y., 415 So.2d 574, 578 (La.App. 3rd Cir.), writ denied, 420 So.2d 164 (La. 1982).

      . "Association property" is statutorily defined as "all the property either held by the association or commonly held by the members of the association, or both, and lots privately held by members of the association." La. R.S. 9:1141.2(1).

      . The record reflects that the trial court's judgment was prepared by counsel for the Association and submitted to the trial court in compliance with Rule 9.5 of the Louisiana Rules for District Courts.

      . This interpretation is reinforced by the intent behind the requirements of Article VI, Paragraph 1 that any “addition" to an existing structure also requires approval by the Architectural Control Committee, and that “ architectural control shall include the approval of a structure's size, structural construction materials, exterior appearance and location on the lot.” In its brief, the City indulges in extended argument concerning the supposed vagueness and overbreadth of the term "work of any kind,” requiring approval by the Committee, as used in Article III, Paragraph 12. The City has posited that a literal interpretation would require an owner to seek approval for any maintenance work, such as grass cutting or tree trimming. We disagree. Considering the building restrictions as an integrated whole and uniform general plan, the "work of any kind” must be interpreted as referring to the placement of any "structure” requiring approval, as described in Article VI, Paragraph 1, or work relating to a change in elevation of the property, as described in Article III, Paragraph 9.

      . Although the City had paid $1,580.00 toward its quarterly assessments due as of December 2007, a balance of $1,420.00 remained as of the time of trial.