text:
    Kary CARROLL, Individually and on Behalf of the Minor Children "ZC" and "DC", Plaintiffs-Appellants v. ALLSTATE INSURANCE, et al, Defendants-Appellees
    No. 51,591-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017
    THE COURSON GROUP, By: Tonya Courson, West Monroe, Counsel for Appellants
    HUDSON, POTTS & BERNSTEIN, L.L.P., By: Jay P. Adams, Jan P. Christiansen, Monroe, Counsel for Appellees
    Before BROWN, PITMAN, and GARRETT, JJ.
   PITMAN, J.

Plaintiffs-Appellants Kary Carroll, individually and on behalf of the minor children "ZC" and "DC" (collectively, the "Carrolls"), appeal the district court's granting of summary judgment in favor of Defendants-Appellees Allstate Insurance ("Allstate") and Randy B. Odom and Loretta Odom (collectively, the "Odoms"). For the following reasons, we affirm.

FACTS

On April 13, 2015, the Carrolls filed a petition for damages for personal injuries against the Odoms and their homeowners' insurer, Allstate. Kary Carroll is the father of the minor children DC (date of birth July 5, 2001) and ZC (date of birth March 31, 2004) and is divorced from the children's mother, Cindy Williams. The Carrolls alleged that on April 12, 2014, ZC was injured while at the home of the Odoms, his maternal great-aunt and great-uncle. Ms. Williams was present as it was her weekend for visitation with her children. ZC, DC and other children were jumping on a trampoline, which had missing springs and holes in the mat, that was located in the Odoms' backyard. The children were not supervised by any adults because the adults were inside the house. As the children jumped, ZC fell on the trampoline, causing other children to fall on him, resulting in ZC being injured. He was taken to the emergency room and was diagnosed with a left radius fracture and an ulna middle shaft fracture. He underwent surgery that day to close the fractures and install titanium pins. The pins were later removed during surgery in January 2015. ZC was unable to play baseball for the spring and summer seasons and experienced nightmares as a result of the accident. The Carrolls argued that the accident was caused by the negligence of the Odoms in that they failed to arrange for and provide proper operating equipment in the form of the trampoline, which served as an attractive nuisance to the children; failed to arrange for adequate security for the children as they played on a dangerous piece of equipment which the Odoms knew or should have known was an attractive nuisance and not safe for children; and failed to properly supervise the children as they played on the trampoline. The Carrolls alleged that as a result of the accident, ZC suffered from mental pain and anguish; medical pain and suffering; past, present and future medical expenses; and past, present and future treatment expenses. They further alleged that Mr. Carroll and DC, as ZC's father and brother, suffered from loss of love, loss of companionship, loss of society and loss of consortium and services.

On November 15, 2015, the Odoms and Allstate filed an answer. They admitted that ZC was playing at the home of the Odoms, but denied that the trampoline was in any way defective or unreasonably dangerous. They further denied that the Odoms had any obligation to supervise the children because the children's mother, Ms. Williams, was present. They also denied that the trampoline was the cause of the accident and contended that the accident was caused by the activities of DC and ZC, who were not being properly supervised by their mother. They further contended that the Carrolls failed to mitigate their damages. They also pled the comparative fault of Ms. Williams and asserted that they are entitled to a setoff in the event they are assessed any fault.

On September 26, 2016, the Odoms and Allstate filed a motion for summary judgment. In a memorandum in support of their motion, they set forth their statement of facts, formed from the depositions of Ms. Williams, DC and ZC. According to Ms. Williams's deposition, she and Mr. Carroll married in November 2000 and divorced in March 2014, one month prior to the accident at issue. They had joint custody of DC and ZC, and Mr. Carroll was the domiciliary parent of the children. She had custody of DC and ZC every other weekend, including the weekend of the accident. The Odoms are the aunt and uncle of Ms. Williams. On the day of the accident, Ms. Williams took her sons to the Odoms' house for a visit. They owned a trampoline at their home, and DC and ZC had jumped on their trampoline more than 20 times in the past. She noted that the trampoline "was in good shape." Prior to the accident, she told her sons, on more than one occasion, to be careful on the trampoline, to take turns jumping and not to roughhouse. On the evening of the accident, DC, ZC and their cousin were playing on the trampoline while she was washing dishes in the kitchen and watching the children through a kitchen window. She looked away for a moment and, when she looked back up, she heard crying. She went outside and discovered that ZC's arm was injured. DC told his mother he was afraid he would get in trouble because he lifted ZC up and dropped him on his arm. According to DC's deposition, he and ZC had played on the Odoms' trampoline more than 20 times before the day of the accident. At the time of the accident, he was playing on the trampoline with ZC and their cousin while their mother was inside the house and was watching them through the kitchen window. DC picked up ZC and told him he was "going to body slam him," but did not intend to do so. DC's hand slipped out from under ZC, and DC dropped ZC. ZC fell on his left arm. This occurred while DC and ZC stood in the center of the trampoline mat. DC noted that there were three or four springs missing on the trampoline and that there was no netting around the trampoline, but that these factors did not have anything to do with losing his grip on his brother. DC stated that the fact that he was standing on a trampoline rather than standing on the ground did not have anything to do with him dropping ZC. According to ZC's deposition, he had jumped on the Odoms' trampoline more than 20 times before the day of the accident. When the accident occurred, he and his brother were "messing around" on the trampoline, and DC picked him up, but accidentally dropped him. He tried to catch himself, but landed on his arm.

The Odoms and Allstate set forth the standard for summary judgment and contended there were no genuine issues of material fact in this matter. They stated that the Carrolls failed to show any negligence on the part of the Odoms. They explained that parents are responsible for the delictual actions of their minor children and are under a duty to properly supervise and protect them. They contended that the Odoms had no duty to supervise DC and ZC and that their mother, who was present at the home, was responsible for the supervision of her children when the accident occurred. They noted that although Ms. Williams was inside the house, she was able to watch her children through a kitchen window as they played on the trampoline. They also argued that because ZC's injury resulted from horseplay between him and DC, the Odoms did not breach any duty owed as the landowners. They contended that the injury did not result from any alleged defect on the property owned by the Odoms or from any alleged defect in the trampoline. They noted that DC admitted that the accident could have occurred on solid ground. They contended that the injury that resulted from horseplay could have occurred in many locations and that there was no proof that the trampoline played any part in the injury. Therefore, the Odoms and Allstate argued that there was no negligence on the part of the Odoms, and the matter should be dismissed with prejudice.

On November 14, 2016, the Carrolls filed an objection and response to the motion for summary judgment. In a memorandum in support of their objection, they argued that the Odoms had a duty to make the premises of their home reasonably safe for those present. They contended that had the children been properly supervised, the body slam attempt and resulting injury could have been avoided. They submitted an affidavit from Mr. Carroll, in which he stated that the Odoms should have supervised DC and ZC because they knew or should have known Ms. Williams could not and would not supervise the children. He stated that Ms. Williams suffers from alcohol and controlled substance abuse and that the Odoms were aware of this abuse. He further stated that he did not allow the children to jump on trampolines because DC broke his leg in a trampoline accident when he was five years old. He noted that the children did not have health insurance.

On November 17, 2016, the Odoms and Allstate filed a reply memorandum in support of their motion for summary judgment. They emphasized that because they did not have a duty to supervise the children and did not breach any duty as landowners, they should be dismissed from this litigation, along with Allstate. They noted that there was no evidence that Ms. Williams was not competent to supervise her children and that the evidence showed that she was watching her children. They also stated that there was no evidence that the trampoline caused the accident and that the evidence showed that the horseplay between DC and ZC caused the accident.

A hearing on the motion for summary judgment was held on November 28, 2016. Counsel for both parties presented the arguments previously set forth in their memoranda in favor of or in opposition to the motion for summary judgment. The district court addressed the safety of the Odoms' home. It noted that there were no allegations that the trampoline was defective, other than that it was missing a few springs, which in no way contributed to the injury. It stated that the trampoline did not turn over, collapse or split, causing the child to hit the ground; but, instead, it functioned as designed. It determined that the accident was caused by DC and ZC "playing too rough" and that the accident could have occurred standing on grass. The district court emphasized that the main issue is whether there was proper supervision of the children and who owed that duty of supervision. It noted Mr. Carroll's allegations that Ms. Williams had a drinking and/or drug problem in the past, but stated that no allegations had been made that she was inebriated at the time of the accident. It declined to transfer responsibility of the children from a parent to a third party when the parent was present. It further stated that had a court previously determined that Ms. Williams was not competent and was required to have supervised visitation with her children, the court's analysis might be different. It addressed the Carrolls' argument that the trampoline was an attractive nuisance, noting that this is not a trespass case and that the children were not attracted to the property because of the trampoline. It stated that the children were allowed to jump on the trampoline with permission from their mother, and it is the responsibility of the mother, not the great-aunt and great-uncle, to determine in what activities a child can participate. Following the hearing, it filed a judgment granting summary judgment in favor of the Odoms and Allstate and against the Carrolls, dismissing the claims of the Carrolls with full prejudice and at their costs.

The Carrolls appeal the judgment of the district court.

DISCUSSION

Duty of the Odoms

In their first assignment of error, the Carrolls argue that the district court erred when it summarily held that no duty was owed to a minor guest by the Odoms at their home when a parent of the minor guest was present. They contend that the Odoms did owe a duty to ZC at their home even though his mother was present. Citing La. C.C. art. 2317, they contend that individuals are responsible for the damage occasioned by the things in their custody; therefore, the Odoms are responsible for the injuries sustained from the trampoline in their custody. They note that although parents are required to properly supervise and protect their children, this duty does not absolve a landowner of a duty owed.

Allstate and the Odoms argue that the Odoms did not breach any duty owed as landowners because the injury resulted from horseplay between DC and ZC, not from any alleged defect on the property.

A motion for summary judgment shall be granted if the motion, memorandum and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Appellate courts review summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Lowery v. Wal-Mart Stores, Inc. , 42,465 (La. App. 2 Cir. 9/19/07), 965 So.2d 980.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Posecai v. Wal-Mart Stores, Inc. , 99-1222 (La. 11/30/99), 752 So.2d 762. Whether a duty is owed is a question of law. Id. Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties. Seals v. Morris , 410 So.2d 715 (La. 1981) ; Lowery v. Wal-Mart Stores, Inc. , supra . No duty to protect against or control the actions of a third party exists unless a special relationship exists to give rise to such a duty.

Mosley v. Temple Baptist Church of Ruston, La., Inc. , 40,546 (La. App. 2 Cir. 1/25/06), 920 So.2d 355. Courts traditionally have found such relationships to exist between parent and child; employer and employee; carrier and passenger; innkeeper and guest; shopkeeper and business visitor; restaurateur and patron; jailer and prisoner; and teacher and pupil. Haskins v. State Farm Fire & Cas. Co. , 612 So.2d 990 (La. App. 2 Cir. 1993). Parents and other custodians have a duty to supervise a child to prevent injury to the child and others. Mahlum v. Baker , 25,876 (La. App. 2 Cir. 6/24/94), 639 So.2d 820. Landowners owe a duty to plaintiffs to discover any unreasonably dangerous conditions and to either correct the condition or warn of its existence. Eisenhardt v. Snook , 08-1287 (La. 3/17/09), 8 So.3d 541.

La. C.C. art. 2317 states that "[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody." The article notes that this statement is to be understood with modifications. La. C.C. art. 2318 sets forth such a modification and states, in part, that "[t]he father and the mother are responsible for the damage occasioned by their minor child."

The Odoms as landowners did not owe or breach a duty in this case. The injury to ZC was not caused by an unreasonably dangerous condition at their home. The trampoline was not defective, and it functioned as designed. DC and ZC both testified in their depositions that ZC's injury was caused by horseplay between them. Although this horseplay occurred on the Odoms' trampoline, the trampoline did not cause the injury.

Further, the Odoms did not have a duty to supervise their grand-nephews. Ms. Williams, who was present at their home with DC and ZC, had a duty to supervise her children as they played.

Accordingly, this assignment of error lacks merit.

Level of Supervision

In their second assignment of error, the Carrolls argue that the district court erred when it summarily held that the level of supervision for the injured child was proper. They contend that the level of supervision for ZC at the Odoms' home was not proper. They further contend that homeowners have a duty to make the premises of their home reasonably safe for those present, even when a child's mother is present. They also note that the weekend the accident occurred was Ms. Williams's first weekend to have visitation with her children; therefore, the Odoms should have been more attentive to the supervision of the children. They assert that, as demonstrated in Mr. Carroll's affidavit, the Odoms were aware that Ms. Williams could not and would not properly supervise the children.

Allstate and the Odoms argue that the district court was correct in determining that the Odoms were not negligent. They contend that they did not have any duty to supervise the minor children because their mother was present. They note that there is no evidence that Ms. Williams was not competent to supervise her children and that the court in the family law proceeding awarded her visitation rights.

As discussed above, the Odoms had no duty to supervise DC and ZC; Ms. Williams, as the children's mother, had a duty to supervise them. Mr. Carroll's allegation of Ms. Williams's past substance abuse does not impose a duty to supervise on the Odoms. There is no evidence that Ms. Williams was not competent to supervise her children. The record demonstrates that the accident occurred while Ms. Williams was exercising unsupervised visitation with her children and that she was watching her children through the kitchen window as they played in the yard.

Accordingly, this assignment of error lacks merit.

Attractive Nuisance

In their third assignment of error, the Carrolls argue that the district court erred when it summarily ruled that the trampoline at the home of the Odoms was not an attractive nuisance. Allstate and the Odoms argue that the trampoline had nothing to do with the accident; therefore, the attractive nuisance argument has no merit.

The attractive nuisance doctrine requires that the condition or agency causing injury must be of such an unusual nature or character as to render it peculiarly attractive to children. McFann v. Sw. Power Elec. Co./AEP , 40,384 (La. App. 2 Cir. 12/14/05), 916 So.2d 1277.

ZC's injury was caused by horseplay between DC and ZC, not by the trampoline. Therefore, the attractive nuisance doctrine does not apply to the facts of this case.

Accordingly, this assignment of error lacks merit.

Location of Injury

In their fourth assignment of error, the Carrolls argue that the district court erred when it summarily ruled that the injury could have occurred standing flatfooted on the ground in a bed of grass. It is their contention that ZC's injury was caused by the trampoline and could not have occurred standing on the ground.

Allstate and the Odoms argue that the injury could have happened on solid ground and that there is no proof that the trampoline played any part in the injury.

As discussed above, ZC's injury was caused by horseplay between him and ZC, not by the trampoline. DC testified in his deposition that while standing on the trampoline, he picked up ZC, but then lost his grip, causing ZC to fall on his arm. DC admitted that standing on the trampoline, rather than standing on the ground, was not relevant to him dropping ZC. Although DC and ZC were on the trampoline when the injury occurred, the trampoline did not cause the injury. Further, any alleged defects to the trampoline, e.g., missing springs, are irrelevant to the accident.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the district court's granting of summary judgment in favor of Defendants-Appellees Allstate Insurance, et al., and against Plaintiffs-Appellants Kary Carroll, individually, and on behalf of the minor children ZC and DC, is affirmed. Costs of appeal are assessed to the Carrolls.

AFFIRMED .

      The Carrolls also named as defendants "John Does 1-10."

      As will be explained more fully below, the allegations set forth in the petition as to how the accident occurred were later shown to be inaccurate. The depositions of DC and ZC referenced below contain a completely different description of what happened.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Diane Ellen PATRICK, Appellant
    No. 51,579-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered October 18, 2017.
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Rayville, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, MEKISHA S. CREAL, ERICA JEFFERSON, Assistant District Attorneys, Caddo Parish, Counsel for Appellee
    Before WILLIAMS, DREW, and COX, JJ.
   WILLIAMS, J.

The defendant, Diane Ellen Patrick, was charged by bill of information with vehicular homicide, a violation of La. R.S. 14:32.1. The defendant pled guilty as charged without an agreement as to sentencing. The defendant was sentenced to pay a $3,000 fine and serve 22 years' imprisonment at hard labor. Defendant appeals her sentence as excessive. For the following reasons, we vacate the illegally lenient sentence and remand for resentencing.

FACTS

The record shows that on December 6, 2014, the defendant was driving a pickup truck north on Buncombe Road in Shreveport, Louisiana, when her vehicle left the roadway and struck Se'Destini Fields, a 23-year-old woman who was canvassing the neighborhood on foot for the Democratic Party with her fiancé. Fields was transported to University Health System Hospital where she ultimately passed away as a result of her injuries. Defendant was taken by the police from the scene to University Health, where she voluntarily submitted a blood sample for toxicological analysis. The results of the blood test revealed that defendant was under the influence of benzodiazepines, cannabinoids and opiates at the time the sample was taken. After being advised of her rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), defendant told police she had taken three Xanax pills, two or three hydrocodone pills and had smoked marijuana the night before the accident. Defendant was arrested and charged with vehicular homicide. Defendant pled guilty as charged and the district court ordered a presentence investigation.

At the sentencing hearing, the defendant's sons, Bradley Stuckey and Dustin Stuckey, testified on their mother's behalf. Both men stated that their mother was very apologetic for her actions. Dustin Stuckey stated that he believed that his mother's drug addiction started after she was prescribed pain medications following an accident. Defendant addressed the trial court and apologized to the victim's family.

Prior to imposing sentence, the trial court noted its review and consideration of the relevant sentencing factors set forth in La. C.Cr.P. art. 894.1, and the information provided in the presentence investigation report. The trial court stated that it had also reviewed all of the investigative reports, as well as letters submitted by the victim's family members and friends. The trial court determined that the maximum sentence was not warranted because the defendant had accepted responsibility for her actions and spared the victim's family the anguish of a trial. However, the trial court also concluded that defendant should have known that her conduct placed the lives of innocent people at risk, especially given her level of impairment, and that she had utilized a dangerous weapon, her vehicle, during the commission of the crime. The trial court recognized that defendant's crime resulted in a permanent loss to the victim and her family.

The defendant's criminal history was especially relevant to the trial court's consideration of the appropriate sentence because it demonstrated a "history over the past-most seriously over the past six years or so of drug abuse and driving under the influence of a controlled dangerous substance[.]" In particular, the trial court noted that defendant had pled guilty to driving while intoxicated, first offense, in 2013 and driving while intoxicated, second offense, in 2014. The trial court explained that this history shows that defendant was aware that she needed to seek treatment for her addiction, but refused to do so before her conduct resulted in the loss of life. Defendant's cooperation with police and her decision to take responsibility for her actions were considered mitigating factors by the trial court.

Based upon the aforementioned factors, the trial court sentenced defendant to pay a $3,000 fine and serve 22 years' imprisonment at hard labor. Defendant was also ordered to pay $5,000 in restitution to the victim's family to cover funeral expenses. The trial court specifically noted that it was not designating the defendant's offense as a crime of violence. The defendant's motion for reconsideration of sentence was denied. This appeal followed.

DISCUSSION

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues she is entitled to a less harsh sentence because she accepted responsibility for her actions by pleading guilty.

In reviewing a claim of excessive sentence, the appellate court first considers whether the record shows that the trial court took cognizance of the sentencing guidelines in La. C.Cr.P. art. 894.1. State v. Jackson , 51,011 (La. App. 2 Cir. 1/11/17), 211 So.3d 639 ; State v. Taylor , 49,467 (La. App. 2 Cir. 1/14/15), 161 So.3d 963. The record should reflect adequate consideration of those guidelines. Id.

The reviewing court next determines whether the sentence is constitutionally excessive by considering whether the sentence is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. La. Const. art. I, § 20 ; State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Lindsey , 50,324 (La. App. 2 Cir. 2/24/16), 189 So.3d 1104. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. Id.

The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Washington , 50,337 (La. App. 2 Cir. 1/13/16), 185 So.3d 852. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson , 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993.

The penalty for conviction of vehicular homicide is a fine of not less than $2,000 nor more than $15,000 and imprisonment with or without hard labor for not less than 5 years nor more than 30 years, with at least 3 years of the sentence to be served without benefit of parole, probation or suspension of sentence. If the offender was previously convicted of a violation of La. R.S. 14:98, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court shall require the offender to participate in a court-approved substance abuse program. La. R.S. 14:32.1(B).

The record indicates that the trial court thoroughly considered the sentencing factors set forth in Article 894.1, including the relevant mitigating factors, i.e., defendant's expression of remorse, her cooperation with police during the investigation, and her decision to take responsibility for her actions. The trial court also recognized the aggravating factors, including defendant's history of driving while under the influence of a controlled dangerous substance.

Furthermore, the sentence imposed is not out of proportion to the seriousness of the offense. Considering the facts of this tragic case, including the youth of Fields when she died, the permanent loss suffered by her family and the risk of death or great bodily harm that defendant created by driving through a busy neighborhood while intoxicated, the sentence imposed does not shock the sense of justice. While on the higher end of the sentencing range, the sentence imposed is not the maximum sentence allowable by law. Based upon this record, the trial court was well within its ample discretion in imposing the 22-year sentence for this defendant. The assignment of error lacks merit.

Error Patent

Our review of this record shows that the defendant's sentence is illegally lenient. As noted above, La. R.S. 14:32.1(B) provides that if an offender was previously convicted of a violation of La. R.S. 14:98, then "at least" 5 years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence and that the court shall require the offender to participate in a court-approved substance abuse program. During sentencing, the trial court noted that defendant had two prior convictions for driving while intoxicated, violations of R.S. 14:98. Thus, at least five years of defendant's sentence should have been imposed without the benefit of parole, probation or suspension of sentence.

This error is not automatically corrected under La. R.S. 15:301.1, because the penalty language of the statute gives the trial court discretion in determining the exact length of time that benefits are to be withheld. Accordingly, the sentence must be vacated and the case remanded to the trial court for resentencing in compliance with La. R.S. 14:32.1(B). See State v. Boehm , 51,229 (La. App. 2 Cir. 4/5/17), 217 So.3d 596 ; State v. Rose , 50,861 (La. App. 2 Cir. 9/28/16), 206 So.3d 1102. In addition, on remand the district court is directed to specify the substance abuse program in which the defendant must participate. See State v. Norris , 2016-394 (La. App. 5 Cir. 12/14/16), 207 So.3d 1199.

CONCLUSION

For the foregoing reasons, the defendant's conviction is affirmed. The sentence is vacated and this matter is remanded for resentencing, particularly directing the district court to determine the period of benefit restriction and specify the approved substance abuse program.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING WITH INSTRUCTIONS.


author: MOORE, J.

text:
    U.L. COLEMAN COMPANY, LTD., Plaintiff-Appellant v. Keitha Dickson GOSSLEE, Defendant-Appellee
    No. 51,396-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 3, 2017
    McMICHAEL, MEDLIN, D'ANNA, WEDGEWORTH & LAFARGUE, LLC By: James C. McMichael, Jr.Anna Brown Priestley Counsel for Appellant
    STROUD, CARMOUCHE & BUCKLE, P.L.L.C. By: Nichole M. Buckle Counsel for Appellee
    BARHAM & WARNER, L.L.C. By: Vicki C. Warner
    Before BROWN, WILLIAMS, MOORE, STONE, and BLEICH (Pro Tempore ), JJ.
   MOORE, J.

Both sides appeal aspects of judgments that divided, between a real estate broker and its former agent, real estate sale commissions on two large sales, awarded the former agent lease commissions, and assessed penalty wages and an attorney fee against the broker. For the reasons expressed, we affirm in part, reverse in part, and render.

FACTUAL BACKGROUND

U.L. Coleman Co. ("ULCC") is a real estate broker in Shreveport with a large business in commercial sales, leases and property management. In July 1994, it hired Keitha Gosslee as a leasing agent and sales associate. ULCC designated her as an employee and paid her a monthly salary (initially $2,000) plus commissions on her leases and sales. Apparently, Ms. Gosslee was an energetic and successful agent, although ULCC's principal, Linc Coleman ("Coleman"), felt she was always angling for higher salary and bigger commissions.

They signed an employment agreement, December 1, 1995, which divided all commissions according to an attached schedule and recited that lease commissions were either paid monthly over the term of the lease or up front (most were monthly). Ms. Gosslee's lease commission was 37½%; in October 1997, ULCC increased this to 47¼%. By letter agreement in December 1999, ULCC added a 15% bonus commission if she exceeded a sale and lease volume of $137,500 in a given year; she exceeded the threshold every year and qualified for the bonus. None of these agreements included a covenant not to compete.

On August 22, 1997, Tom Bradshaw, a developer for Walgreens, called ULCC and came in to discuss his company's plans to expand to north Louisiana and east Texas. This was an enormous deal, as Walgreens was looking to build perhaps 10 stores in the area. Coleman chose Ms. Gosslee to join the meeting, and they persuaded Bradshaw to sign an exclusive representation agreement with ULCC to identify and develop locations for new Walgreens stores. This agreement had a stated term of one year, but Coleman testified he considered it to be in force as long as ULCC was still providing services to Bradshaw. Coleman gave Ms. Gosslee the assignment, and she dove in energetically, as it was a career project.

Of relevance to this case, she worked to get suitable sites at the intersections of Pines Road and W. 70th St., in Shreveport; Shed Road at Airline Dr., in Bossier City; and Lamy Lane and Louisville Ave., in Monroe. Through July 23, 2001, she negotiated Bradshaw's purchase of five sites for new Walgreens locations. She and Coleman testified that in these transactions, the sale commission was divided 62½% to ULCC and 32½% to Ms. Gosslee.

In July 2001, Ms. Gosslee resigned from ULCC. She left because she felt Coleman had reneged on a lucrative commission involving the Chase Bank building. Coincidentally, she had just obtained her own real estate broker's license, and could open her own real estate company.

Before leaving ULCC, Ms. Gosslee made a list of pending projects, including the Shed Rd. Walgreens. Coleman agreed she could complete these deals on ULCC's behalf. She closed on Shed Road in December 2001, at a price of $1.325 million, subject to a 5% commission, or $66,250, of which she remitted to ULCC only 47½%, feeling she was entitled to the 15% bonus for exceeding her threshold. She also had three pending commercial leases generating monthly lease commissions. Sometime after her departure, Coleman and his staff discovered that she had carried off a number of active files, including Walgreens files.

After leaving ULCC, Ms. Gosslee formed her own company, Keitha Gosslee & Associates ("KGA"). On August 21, 2001, she signed an exclusive representation agreement with Bradshaw for the Walgreens account. She then got back to work on the Pines Road and Lamy Lane projects. She closed a sale on Pines Road in November 2002, at a sale price of $1.16 million and 6% commission, and retained the whole commission, or $69,600. She closed a sale on Lamy Lane in May 2004, at a sale price of $1.225 million and 6.857% commission, and retained the whole commission, $84,000. There was much testimony regarding what (if anything) ULCC did to work these sales after Ms. Gosslee left.

PROCEDURAL HISTORY

ULCC filed this petition in November 2003 demanding the return of all active files Ms. Gosslee had taken from the office in 2001. It also alleged that ULCC was entitled to a share of the commission she earned on any Walgreens file that she closed after she left. By subsequent brief, ULCC argued that Ms. Gosslee wrongly withheld sale commissions of $105,937, and conceded that it (ULCC) had withheld her lease commissions of $27,875. It demanded the balance, $78,062.

Ms. Gosslee filed a denial, asserting that she and ULCC had no noncompetition agreement. She also reconvened, alleging that she was entitled to lease commissions that ULCC had either not paid at all, or had paid without the 15% bonus commission to which she was entitled. She also alleged that commissions are deemed to be "wages" under the Payment of Employees Law, La. R.S. 23:631 -634, and ULCC's failure to remit them entitled her to the unpaid wages, 90 days' wages as a penalty, and reasonable attorney fees. By subsequent brief, she claimed she was due salary and commissions of $48,377, with penalty wages to be calculated.

The matter languished in discovery for several years. Trial began over two days in June 2012, before Judge Leon Emanuel. Over the first day, and half of the second, Coleman offered his interpretation of Ms. Gosslee's commission scheme and of the relationship with Bradshaw after Ms. Gosslee left ULCC. On the second day, Bradshaw testified, out of order, saying that after Ms. Gosslee left ULCC, he never heard another word out of Coleman or anybody else at ULCC. He bluntly described his exclusive representation agreement with ULCC as "dead" before he signed with KGA.

The trial recessed until June 26, but another (unspecified) delay intervened, and then Judge Emanuel retired (in December 2013). The trial finally resumed in April 2015, when it was heard over two days by Judge Mike Pitman, who stated for the record that he had read the transcript from 2012. The parties announced that in the interim, an important witness, Bradshaw, had died, and the court would have to rely on the transcript of his earlier testimony.

ULCC called its controller, David Lester, to describe in detail the different ways the company treated commissions for sales and for leases of managed and nonmanaged properties. ULCC spent some time trying to qualify a Benjamin Dowis III as an expert in real estate broker-agent relations, but the court refused to accept him.

Ms. Gosslee called Daniel Hutchinson, one of the owners of the Pines Road property. He admitted that in 2000, Ms. Gosslee had negotiated with him and his co-owner about buying their old Goodyear store, but the co-owner refused to sell at Bradshaw's price. By late fall 2001, however, Ms. Gosslee contacted them again about the same property, but this time she said Bradshaw would pay a $50,000 relocation fee, with an extra $50,000 on the purchase price; remarkably, the co-owner agreed, and the deal closed in November 2002. Hutchinson admitted that Ms. Gosslee had identified the property, negotiated and reached a purchase price before July 2001, but he felt that she had closed the deal on KGA's behalf, not ULCC's.

Ms. Gosslee then testified, giving her understanding of ULCC's commission structure. When she left, she was earning a commission of 31½% on nonmanaged and 47¼% on managed lease properties; however, after she left, ULCC paid her only 31½%, on all leases , including managed ones. She gave her account of the Pines Road deal, largely agreeing with Hutchinson. On the Lamy Lane deal, she testified that she had identified the southwest corner of the intersection and negotiated, unsuccessfully, with the owners in 2000. After she left ULCC, she identified the northeast corner and negotiated with those owners, closing the deal in May 2004. She felt she did not owe ULCC any portion of the commission on either of these deals. On cross-examination, she described in great detail the three commercial leases on which she had been receiving monthly commissions when she left ULCC. She felt that by securing those tenants and getting them to sign leases, she had earned her full commission, and it should not be reduced simply because she was now off ULCC's payroll.

On rebuttal, Coleman described the culture and history of his company, largely repeating his testimony from 2012. He insisted that after Ms. Gosslee left, he still considered Bradshaw to be "his" client, but was "not sure" if he even talked to him until long after he signed with KGA. Also, Coleman strongly felt that only a "licensed employee" was entitled to receive the 15% bonus commission; after Ms. Gosslee left, he had every right to quit paying it. He also admitted "crediting" some of her lease commissions against the sale commissions he felt she owed ULCC for Pines Road and Lamy Lane.

ACTION OF THE TRIAL COURT

The court rendered an opinion in September 2015, finding: (1) ULCC was the "procuring cause" of the Pines Road deal and thus entitled to a portion of that commission; (2) ULCC was not the procuring cause of the Lamy Lane deal, and thus not entitled to a portion of that commission; (3) Ms. Gosslee was entitled to the 15% bonus on lease commissions withheld by ULCC from August to December 2001 (as well as a 15% bonus on the Shed Road deal); (4) she was not entitled to "higher commissions" for managed properties; and (5) she was not entitled to future renewal commissions. The court asked for supplemental briefs regarding quantum.

In February 2016, the court issued a supplemental opinion and rendered a judgment awarding Ms. Gosslee (1) unpaid lease commissions of $27,875, plus judicial interest from the date each commission was earned; (2) unpaid bonus commission of $3,653, plus interest from the date it was earned; (3) penalty wages of $64,336, plus interest from date of judicial demand; and (4) an attorney fee of $16,084, plus interest from date of judicial demand.

By final judgment, April 2016, the court incorporated the prior judgment and awarded ULCC 62½% of the commission received by Ms. Gosslee on Pine Road, or $43,500, with interest from date of judgment.

ULCC appealed, raising five assignments of error. Ms. Gosslee answered the appeal, raising seven.

DISCUSSION

Procuring Cause-Lamy Lane and Pines Road

By its first assignment of error, ULCC urges that it was the procuring cause of the Lamy Lane deal, and should get a share ($52,500) of Ms. Gosslee's commission; by her second assignment, Ms. Gosslee responds that the court correctly analyzed Lamy Lane. By her first assignment, Ms. Gosslee urges the court erred in awarding ULCC a portion ($43,500) of her commission on Pines Road; by reply brief, ULCC submits the court correctly analyzed Pines Road. Both sides concede the issue is factual and governed by manifest error.

Because ULCC had no contract with the buyer or the seller, the issue in these sales is "procuring cause." A realtor is entitled to a commission when he is a third-party beneficiary to a valid contract between a seller and a buyer. Creely v. Leisure Living Inc. , 437 So.2d 816 (La. 1983). A realtor can win a commission dispute if he is the procuring cause of the sale, or if the principal would otherwise enjoy an unjust enrichment at the broker's expense. Id. The concept is applied even where the term of the broker's listing agreement has expired. TEC Realtors Inc. v. D & L Fairway Prop. Mgmt. LLC , 2009-2145 (La. App. 1 Cir. 7/9/10), 42 So.3d 1116, writ denied , 2010-1841 (La. 10/29/10), 48 So. 3d 1092. Procuring cause is defined as follows:

A cause originating or setting in motion a series of events which, without break in their continuity, result in the accomplishment of the prime object of the employment of the broker, which may variously be a sale or exchange of the principal's property, an ultimate agreement between the principal and a prospective contracting party, or the procurement of a purchaser who is ready, willing and able to buy on the principal's terms. Sleet v. Harding , 383 So.2d 122 at 124 (La. App. 3 Cir. 1980) ; Cramer v. Guercio , 331 So.2d 550 at 552 (La. App. 1 Cir. 1976) ; Sleet v. Williams , 291 So.2d 495 at 498 (La. App. 3 Cir. 1974).

Creely v. Leisure Living , supra ; TEC Realtors v. D & L Fairway , supra .

The courts look to various factors to determine whether a broker has or has not been the procuring cause of a sale: whether the prospect who ultimately purchased the property knew about the property before being contacted by the broker; the relative success or failure of the negotiations conducted by the broker, including the continuity or discontinuity of the original and final negotiations, the length of time elapsing between the broker's negotiations and the final sales agreement; and the development of a new, different, or independent motive for the prospect to purchase; whether or not the broker abandoned efforts to negotiate the transaction with a particular prospect; and, finally, the good or bad faith of the principal and the broker. Farnsworth Samuel Ltd. v. Grant , 470 So.2d 253 (La. App. 4 Cir. 1985), citing Lora C. Sykora, "The Law of Real Estate Brokerage Contracts: The Broker's Commission," 41 La. L. Rev. 857 (1981).

We have closely examined the record evidence and find no manifest error in the district court's ruling as to Lamy Lane. ULCC correctly shows that it paid her monthly salary while Ms. Gosslee identified the intersection of Lamy Lane and Louisville Ave. as a potential Walgreens location, it paid a landman to find the owners, and Ms. Gosslee negotiated with them to buy the southwest corner. However, one of the owners was unwilling to break a sublease on the property, and negotiations ended sometime in 2000. Ms. Gosslee then identified the northeast corner as a potential location in February 2002, some seven months after she left ULCC. At this time, she found the owners, engaged them in fairly long negotiations, and closed a sale in May 2004. There is not one scintilla of evidence that after Ms. Gosslee left, in July 2001, ULCC performed any services to facilitate an agreement between the sellers and the buyer, Bradshaw. ULCC's first assignment of error lacks merit.

We have also examined the evidence as to Pines Road. The district court found "no break in the continuity" because the tract ultimately purchased by Walgreens was the same as that scouted by Ms. Gosslee while she was employed at ULCC, and because the parties were the same. While these points are valid, they do not reflect the entirety of the transaction as properly analyzed under Creely v. Leisure Living and Farnsworth Samuel v. Grant , supra . The record shows that Bradshaw had a wish list of properties, including Pines Road, and considered this a "priority site" before he ever contacted ULCC. The initial negotiations for this tract had completely failed; the owner, Hutchinson, testified that as of the spring of 2001, the deal with ULCC was "dead," and they were even trying to revive their Goodyear store; the buyer, Bradshaw, also considered his exclusive representation agreement with ULCC "dead," and after signing with KGA he restructured the deal enough to induce Hutchinson's partner to sell; and at the time Ms. Gosslee left ULCC, neither side listed Pines Road as a "pending project." Most strikingly, during the 11 months from when ULCC's negotiations broke down until Ms. Gosslee obtained the purchase agreement, ULCC took no actions whatsoever to accomplish this sale. Bradshaw was adamant that after July 2001, he never heard from Coleman or anybody else at ULCC, and Coleman was "not sure" if he even called Bradshaw. This is, in our view, conclusive evidence that ULCC abandoned efforts to negotiate the transaction. In addition, Hutchinson testified that in late 2001 a lienholder on the property had become very ill, and was more inclined to release the property; and Ms. Gosslee testified that in early 2002 she saw a competing tire store had opened next to Hutchinson's tract; these facts show a "new, different or independent motive" for Bradshaw to purchase. Finally, the record simply does not support the implication that either Ms. Gosslee or Coleman acted in bad faith; they accomplished many of their objectives, and then parted ways.

Viewing the totality of the evidence, and applying the principles of Creely v. Leisure Living and Farnsworth Samuel v. Grant , supra , we are constrained to find the record does not support the finding that ULCC was a procuring cause with respect to the Pines Road deal. The district court's finding to the contrary is plainly wrong, and will be reversed. Ms. Gosslee's first assignment has merit.

Judicial Interest

By its fifth assignment of error, ULCC urges that any commission it is entitled to receive from Ms. Gosslee for the Pines Road deal should be subject to judicial interest from date of judicial demand, La. C.C. art. 2000. The final judgment imposed interest only "from the date of judgment."

Because we have determined that Ms. Gosslee was the procuring cause of the Pines Road deal, and ULCC is entitled to no portion of that commission, this assignment of error lacks merit.

Amount of Lease Commissions

By her fourth assignment of error, Ms. Gosslee urges the district court erred in awarding her only 31½%, instead of 47¼%, in lease commissions (a difference of $14,285.36). She argues her contract with ULCC was based on two documents. First, her employment agreement, December 1, 1995, stated that in the event of termination, an employee "shall be entitled to the leasing associate employee portion" for the current or primary term of the lease. Second, her commission schedule, October 3, 1997, set her rate at 47¼% for managed properties ("If listed and leased by" ULCC) and 31½% for nonmanaged properties (but 47¼% "When listed and leased by" Ms. Gosslee). She concedes that ULCC introduced two additional documents that had been placed in her personnel file, including a January 1, 1995, memo referring to the "lease management portion"

and "leasing associate portion" of lease commissions, and an August 9, 1995, memo stating that "on termination, leasing schedule for nonmanagement accounts shall be used." She contends, however, that she never signed either of these memos, so she is not bound by them; they both predate her employment agreement, and are superseded by it; and they do not define or quantify the "lease management portion" which the district court apparently accepted as the difference between the 31½% and 47¼% commission rates. She concludes the court was plainly wrong to accept the antecedent, unsigned memos to vary the terms of her employment agreement and commission schedule.

ULCC cites Coleman's expansive testimony that the higher rate for managed properties reflected services and contacts with the lessee that the agent was intended to perform during the life of the lease; if the agent left, she would no longer perform these and thus was not entitled to the higher commission. It suggests the court committed no manifest error.

The interpretation of contracts is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art. 2053. Parol or extrinsic evidence is generally inadmissible to vary the terms of a written contract unless the written expression of the common intent of the parties is ambiguous. Campbell v. Melton , 2001-2578 (La. 5/14/02), 817 So.2d 69 ; Kennedy v. Saheid , 51,044 (La. App. 2 Cir. 11/16/16), 209 So.3d 985, writ denied , 2016-2241 (La. 1/23/17), 215 So. 3d 681. A contract is deemed ambiguous on the issue of intent when either it lacks a provision bearing on that issue, the terms of the contract are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language used. La. C.C. art. 1848 ; Campbell v. Melton , supra ; Kennedy v. Saheid , supra . Factual findings that pertain to the interpretation of a contract will not be disturbed absent manifest error. Campbell v. Melton , supra ; Kennedy v. Saheid , supra .

Even a cursory review of this record shows that the parties had a long, complex and evolving relationship. More than one document formed the entire agreement, and they are not wholly congruent. The employment agreement, December 1, 1995, established Ms. Gosslee's right to receive commissions post-employment; however, it specifically referred to the "leasing associate employee portion" and did not define this. Compounding the ambiguity, the commission schedule, October 3, 1997, distinguished between nonmanaged properties (15¾% to the listing employee, 31½% to the leasing employee) and managed properties (47¼% to the leasing employee). Coleman testified that ULCC paid the higher rate for managed properties because the agent was supposed to give customer service over the life of the lease; if the agent was no longer employed at ULCC, she could not provide these services. The August 1995 memo, setting post-termination commissions at the nonmanaged property rate, corroborates Coleman's explanation and is generally consistent with the terminology used in the employment agreement. On this record, we cannot say the district court committed manifest error in interpreting "leasing associate employee portion" as the nonmanaged property rate. This assignment lacks merit.

Validity of Lease Commissions

By its fourth assignment of error, ULCC urges the district court erred in awarding any unpaid commissions at all, because Ms. Gosslee did not specially plead quantum meruit. It contends that these commissions (totaling $27,875.37) arose post-employment and not pursuant to any agreement. It submits that her only viable theory of recovery is quantum meruit, La. C.C. arts. 2292 - 2294, a form of damages that requires special pleading, Terral v. Bearden , 338 So.2d 141 (La. App. 2 Cir. 1976). Without the special plea, ULCC concludes, the award is invalid.

By her third assignment, Ms. Gosslee urges that ULCC's own conduct, calculating and withholding her lease commissions after she left, proved the validity of her claim.

This court has already found that multiple documents constituted the entire agreement between ULCC and Ms. Gosslee; the employment agreement provided for payment of the "leasing associate employee portion" of a commission after termination, and the August 1995 memo provided for payment of "nonmanagement accounts" upon termination. The whole agreement clearly required the payment of earned commissions after Ms. Gosslee left the company. ULCC's contention to the contrary, and this assignment of error, lack merit.

Lease Commissions as Wages

By its second assignment of error, ULCC urges the district court erred in awarding penalty wages ($64,336.50) and an attorney fee ($16,084.13) under La. R.S. 23:632. The substantive statute, R.S. 23:631 A(1)(a), requires the employer upon discharge to "pay the amount then due under the terms of employment," but ULCC cites Coleman's testimony that commissions are not earned until the rent is actually collected each month as supporting the court's finding (September 2015 opinion) that ULCC had the discretion to declare when a commission was earned. ULCC also argues that post-termination commissions are not considered wages for purposes of the statute; in support, it cites Saacks v. Mohawk Carpet Corp. , 2003-0386 (La. App. 4 Cir. 8/20/03), 855 So.2d 359, writ denied , 2003-2632 (La. 12/12/03), 860 So. 2d 1158, and Boudreaux v. Hamilton Med. Group , 94-0879 (La. 10/17/94), 644 So.2d 619.

By her fifth assignment of error, Ms. Gosslee urges the court correctly awarded the penalty and attorney fee. She argues her employment agreement expressly distinguished between when a commission is earned (when the lease is signed) and when it is distributed (as each month's rent is received), and that courts have recognized the difference, as in Patterson v. Alexander & Hamilton Inc. , 2002-1230 (La. App. 1 Cir. 4/2/03), 844 So.2d 412, and Graves v. Automated Comm'l Fueling Corp. , 2005-2561 (La. App. 1 Cir. 11/3/06), 950 So.2d 759. She also argues that an employer may not invoke an internal pay policy as a pretext for an equitable defense, Hendrix v. Delta Air Lines Inc. , 234 So.2d 93, 19 Wage & Hour Cas. (BNA) 502 (La. App. 4 Cir.), writ ref'd , 256 La. 364, 236 So.2d 498 (1970) ; Becht v. Morgan Bldg. & Spas Inc. , 2002-2047 (La. 4/23/03), 843 So.2d 1109, cert. denied , 540 U.S. 878, 124 S.Ct. 289, 157 L.Ed.2d 142 (2003).

Upon discharge of any laborer or other employee of any kind whatever, the employer is required to pay "the amount then due under the terms of employment," no later than 15 days after discharge. La. R.S. 23:631 A(1). Failure to comply with this provision subjects the employer to a penalty wage of 90 days' wages or full wages from date of demand until payment, whichever is less. La. R.S. 23:632 A. However, if the court finds that the employer disputed the amount of wages in good faith, the employer is liable only for the amount of wages in dispute plus judicial interest from date of judicial demand. La. R.S. 23:632 B. Reasonable attorney fees are to be awarded for any well-founded suit for unpaid wages filed by the employee after three days from first demand for payment. La. R.S. 23:632 C. The main purpose of these provisions is to compel an employer to pay the earned wages of an employee promptly after his dismissal or resignation; the employer cannot rely on unlawful company policy as a good-faith defense to § 632. Beard v. Summit Inst. of Pulmonary Med. , 97-1784 (La. 3/4/98), 707 So.2d 1233 ; Smith v. Acadiana Mortg. of La. Inc. , 42,795 (La. App. 2 Cir. 1/30/08), 975 So.2d 143. This statute is penal in nature and must be strictly construed, yielding to equitable defenses. Knight v. Tucker , 50,993 (La. App. 2 Cir. 11/16/16), 210 So.3d 407, 27 Wage & Hour Cas. 2d (BNA) 194, writs denied , 2017-0241, -0247 (La. 4/7/17), 218 So. 3d 109.

Generally, when sale commissions are at issue, the inquiry of whether a wage was actually earned focuses on what work associated with the sale remained at the time of the employee's discharge. Schuyten v. Superior Sys. Inc. , 2005-2358 (La. App. 1 Cir. 12/28/06), 952 So.2d 98, and citations therein . Where only collection of the fee is outstanding and collection is beyond the control of the employee, the employee has earned his commission for purposes of the Payment of Employees law; however, if a substantial amount of time and effort are needed to complete a sale, then the right to a commission may not have been earned. Id.

We recognize the apparent inconsistency between the two opinions rendered by the district court. In the September 2015 opinion, the court read the employment agreement as giving ULCC sole discretion to determine when commissions are earned. Since this meant that lease commissions were not earned until the lessee paid rent each month, Ms. Gosslee's commissions were not due on the day she resigned. However, in the February 2016 opinion regarding statutory penalties and attorney fees, the court found that ULCC "clearly erred in failing to timely pay Ms. Gosslee her earned commissions after her resignation in July of 2001." Using ULCC's internal records, the court calculated Ms. Gosslee's daily wage for 2001 at $714.84, multiplied it by 90 to get $64,336.50, and rendered judgment for that amount. Whatever the court may have stated in its first opinion, this was superseded by the second opinion and the judgment. The appeal is from the judgment, not from the written reasons for judgment. Greater New Orleans Expressway Com'n v. Olivier , 2002-2795 (La. 11/18/03), 860 So.2d 22 ; Hardy v. Easterling , 47,950 (La. App. 2 Cir. 4/10/13), 113 So.3d 1178. We therefore do not accept the claim that the district court found the lease commissions were not wages for purposes of R.S. 23:632.

Instead, we have reviewed, under the manifest error standard, the court's implicit finding that the lease commissions were wages. The employment agreement states:

When the Associate-Employee shall perform any service hereunder, whereby a commission is earned, said commission shall, when collected, be divided between the Broker [ULCC] and Associate-Employee, pursuant to the rider attached[.]

The plain reading of this passage is that the commission is earned when the employee performs "any service hereunder," and that it is divided when it is collected. The commission was earned when Ms. Gosslee secured a tenant and got him to sign on the dotted line; it would not be distributed until the tenant paid each month's rent. This plain reading mirrors Ms. Gosslee's interpretation of the agreement and finds support in ULCC's careful accounting (and withholding) of her monthly commissions.

Moreover, it is analogous to the judicial approach to sale commissions in cases like Patterson v. Alexander & Hamilton , supra , and Graves v. Automated Comm'l Fueling Corp. , supra . The general rule is that when only the collection of the fee is outstanding, and collection is beyond the control of the employee, the employee has earned his commission. The cases cited by ULCC do not contradict this rule: Boudreaux v. Hamilton Med. Group , supra , involved not sale commissions but a contractual severance package, which the Supreme Court found did not constitute payment for employment "by the day, week or month"; and Saacks v. Mohawk Carpet , supra , found that the plaintiff never converted her pay scheme from salary to commission, and the court actually affirmed the imposition of penalty wages.

The district court did not abuse its discretion in finding that Ms. Gosslee's lease commissions were amounts then due under the terms of employment, as required by R.S. 23:631 A(1)(a), in treating them as wages, and in imposing penalty wages under R.S. 23:632 A. ULCC's second assignment of error lacks merit.

By its third assignment of error, ULCC urges, in the alternative, that even if the penalty and attorney fee are warranted, they should apply only to commissions that were unpaid (some $7,114.23) before the Pines Road deal closed, November 2002. Under R.S. 23:632 B, the penalty does not apply if the "employer's dispute over the amount of wages due was in good faith," or if the employer has an equitable defense. Rodriguez v. Green , 2012-0098 (La. App. 4 Cir. 6/20/12), 111 So.3d 1. ULCC contends that after Ms. Gosslee closed the Pines Road deal without remitting any commission-and the court found that commission was due-it (ULCC) was entitled to offset or "credit" her lease commissions against the debt.

Even though it found that ULCC was entitled to a share of Ms. Gosslee's sale commission on the Pines Road deal, the district court did not consider this a good-faith dispute or an equitable defense to payment of the lease commissions that Ms. Gosslee had already earned. This was no abuse of discretion, given that the lease commissions were earned and quantified while the sale commission was subject to valid legal dispute. In light of this court's finding that ULCC is not entitled to a share of the Pines Road commission, there is even less to ULCC's claim of good faith and equitable defense. Blanton v. Malkem Int'l Corp. , 628 So.2d 178 (La. App. 2 Cir. 1993). As noted, the purpose of § 632 is to compel the prompt payment of wages after an employee's dismissal or resignation. Beard v. Summit Inst. , supra ; Smith v. Acadiana Mortg. , supra . Significantly, Ms. Gosslee did not initiate litigation to recover her lease commissions; she asserted it only after ULCC sued her for sale commissions.

We perceive no abuse of discretion. ULCC's third assignment lacks merit.

Quantum of Attorney Fee

By her sixth assignment, Ms. Gosslee urges that while attorney fees were plainly warranted under R.S. 23:632, the amount awarded ($16,084.14) is "grossly inadequate," considering that her unpaid commissions and penalty wages totaled $120,088.23 plus judicial interest. She submits that 35% would be reasonable, as was awarded in Saacks v. Mohawk Carpet Corp. , supra . She suggests raising the award to $42,030.88.

ULCC chiefly argues that no attorney fee was due because post-termination lease commissions were not earned until each month's rent was collected, and they were offset by the sale commission on Pines Road; for the reasons already discussed, these arguments lack merit. In the alternative, ULCC submits the award was not an abuse of discretion.

An award of attorney fees must be reasonable, based on the degree of skill and work involved in the case, the number of court appearances, the depositions and the office work involved. Smith v. Acadiana Mortg. , supra , and citations therein . The factors bearing on the reasonableness of an attorney fee are (1) the ultimate result obtained, (2) the responsibility incurred, (3) the importance of the litigation, (4) the amount of money involved, (5) the extent and character of the work performed, (6) the legal knowledge, attainment and skill of the attorneys, (7) the number of appearances involved, (8) the intricacies of the facts involved, (9) the diligence and skill of counsel, and (10) the court's own knowledge. State v. Williamson , 597 So.2d 439 (La. 1992) ; Rule 1.5, Rules of Prof. Conduct. The trial court is vested with considerable discretion in setting attorney fees and its decision will not be disturbed absent an abuse of that discretion. Smith v. Acadiana Mortg. , supra ; Hanks v. Louisiana Cos. , 2016-334 (La. App. 3 Cir. 12/14/16), 205 So.3d 1048, 2016 IER Cases 414,549.

The district court used the penalty wages, $64,336.50, and awarded 25% of this amount as attorney fee, $16,084.13. At first blush, this appears low, for a case that was pending nearly 13 years, entailed four days of trial over nearly three years, generated nearly 15 lbs. of trial exhibits, and required additional court-ordered briefs. Still, we find that much of this monumental effort was devoted to litigating the sale commissions for Pines Road and Lamy Lane, items that were contractual in nature and not "then due" at the time of Ms. Gosslee's separation from ULCC. On this record, we do not consider 25% an abuse of discretion. Further, cases like Saacks v. Mohawk Carpet , supra , and Waller v. State , 2011-643 (La. App. 3 Cir. 11/9/11), 79 So.3d 1085, writ denied , 2011-2692 (La. 2/10/12), 80 So. 3d 488, 80 So. 3d 488, affirmed 35% attorney fees on the records presented; we do not read them as setting a standard. This assignment of error lacks merit.

By her seventh assignment of error, Ms. Gosslee urges she is entitled to additional attorney fees for responding to the appeal, as authorized by R.S. 23:632. Webb v. Roofing Analytics LLC , 48,248 (La. App. 2 Cir. 7/24/13), 121 So.3d 756. She requests an additional $18,750 for the appeal.

An additional attorney fee is usually awarded when one party appeals, obtains no relief, and the appeal has necessitated additional work on the part of the other party's counsel. Graves v. Automated Comm'l Fueling, supra . The amount of the additional fee is within the appellate court's discretion. Webb v. Roofing Analytics LLC , supra . On this record, an additional attorney fee of $5,000 is appropriate. This assignment of error has merit; the judgment will be amended accordingly.

CONCLUSION

For the reasons expressed, the district court's judgment of February 24, 2016, is affirmed in its entirety. However, the district court's "final judgment," of April 15, 2016, is reversed insofar as it awarded ULCC any portion of the sale commission of Pines Road. Finally, this court renders judgment in favor of the defendant, Keitha Dickson Gosslee, and against the plaintiff, U.L. Coleman Co. Ltd., for attorney fees in the amount of $5,000.00, for handling this appeal.

Each side is to bear its own appellate costs.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED .

BROWN, C.J., dissents in part with written reasons.

BLEICH, (Pro Tempore ), J., concurs in part and dissents in part with written reasons.

BROWN, C.J., dissents in part with written reasons.

I fully agree with Judge Bleich's reasons in his dissent. I would, however, additionally dissent from the award of penalties and attorney fees in relation to lease commissions. This litigation was not initiated by Gosslee. As the majority opinion clearly shows, the many issues in this case were complex and were competently argued. As to the lease commissions, there were questions as to whether they were wages and when they were earned. Further, there were two contradictory opinions by the trial court as to whether these lease commissions were wages for purposes of La. R.S. 23:632. The defenses to the lease commissions were not in bad faith and were equitable.

BLEICH, J. (Pro Tempore ), concurring in part and dissenting in part.

The trial court's factual finding concerning the Pines Road/70th Street transaction was not manifestly erroneous. In fact, Judge Pitman's conclusion was clearly correct. He adroitly distinguished between the unsuccessful original negotiations and consummation of the ultimate transaction. In this writer's opinion the only "break in continuity" in this transaction was that manufactured or imagined by Gosslee. For these reasons, this dissent is submitted. In all other particulars, I concur in the excellent majority opinion.

In his opinion, Judge Pitman found:

To be the procuring cause, the company must set into motion a series of events without a break in their continuity. Here, there was no break in the chain of events that led to the purchase of the property. There was no break in the continuity of the sale because (1) the property finally purchased by Walgreens was the exact property that was scouted by Ms. Gosslee during her employment with ULCC, and (2) the parties involved in the second negotiation were the same ones involved in the original negotiation. It is possible that, had the property been sold to a different party in the interim, and was then sold Walgreens, this may have been sufficient to constitute a break in continuity. However, this was not the case.

Judge Pitman's review of the evidence and logical conclusions drawn from it were most efficient and compelling in light of the conflicting testimony offered by the parties. The trial court exercised sound judgment in determining the truth. In addition to that which appears of record, we should grant deference to the trial judge's decision because of his ability to observe the demeanor of various witnesses over the course of several days. In particular, he had the opportunity to judge the credibility of Gosslee and Coleman.

Portions of the trial testimony are corroborative of the trial judge's decision and what was ultimately believed. Multiple instances, gleaned strictly from the trial transcript, show Gosslee as argumentative, sarcastic, non: responsive, focused on a result, misleading, and overly dramatic. Certainly, the tenor of the testimony might very well have been a legitimate basis for the trial judge's conclusions.

Otherwise, the majority's emphasis on Creely v. Leisure Living Inc. , 437 So.2d 816 (La. 1983) is not pertinent here. The rule of law is correctly stated, although it is noted that the "factors" of procuring cause mentioned there are not exclusive but illustrative. Moreover, the factual context of that decision is different from the present case. The majority and trial court certainly recognized the applicable considerations concerning "procuring cause." In our case, however, there is a dispute between two realtors, one of whom, Gosslee, was an employee and agent of the other, ULCC. In this context, Gosslee had dual duties to both her client and employer. The involvement of ULCC in setting in motion a series of events and circumstances, including training Gosslee, coupled with the balance of the trial court's findings, all of which led to the ultimate sale, are significantly different from the facts of Creeley , supra (involving splitting a proposed commission, in a concursus proceeding, between a builder: seller and real estate agent).

In this case, one of the "links" in the "chain of events" was the training, experience and expertise provided by ULCC to Gosslee which benefitted her as ULCC's agent serving the needs of the client. Such training and opportunity created a situation in which the client, acting through Bradshaw, fully believed at pertinent times during the representation that Gosslee and ULCC were one and the same. In large part, but for the training and opportunity provided by ULCC, Gosslee would not have been able to "sign an exclusive contract" with Bradshaw, which was "coincidentally" prepared as soon as possible after her leaving ULCC.

Indeed, in our case, Bradshaw (acting on behalf of Walgreens) entered the original contract with ULCC, not Gosslee. Gosslee acknowledged that Bradshaw originally contacted ULCC seeking a CCIM designee, which Gosslee did not possess at that time. Gosslee also admitted that, during her employment with ULCC, the Pines Road/70th Street project was "active" and "was always a priority site." Even after the original written exclusive contract between Bradshaw and ULCC expired on its face, Bradshaw and ULCC were doing business and communicating with one another, a fact Gosslee conceded. Gosslee also admitted that she would not have had contact with Bradshaw but for Coleman. Furthermore, after hurriedly confecting her own agreement of exclusivity with Bradshaw, Gosslee admitted she was unsure if the former exclusive agreement with ULCC and Bradshaw could be continued via an "oral" basis. From these facts, one could easily infer that during the time Gosslee worked as an agent for ULCC, she did in fact develop a professional relationship with Bradshaw, but still owed a duty of fidelity to ULCC.

Further support for the trial court's conclusion was the testimony of Hutchison, one of the property owners, who suggested to Gosslee that she "might want to take another run at" the recalcitrant third party. This most significant development occurred when Hutchison thought he was dealing with ULCC. Hutchison was unaware of any purported "break in continuity," and stated:

I really didn't even realize she was off on her own at that time , you might want to take another run at Mr. Moore because he's been very ill, and may be receptive to selling the business, so ...

(Emphasis supplied).

Hutchison further stated:

Q: So what that means is the deal didn't change from April, 2001 until you consummated the deal in 2002, correct?
A: It didn't appear to.
Q: Same property , right?
A: Yes.
Q: Same owners ?
A: Yes.
Q: Same purpose of the property?
A: Yes.
Q: Same use to be utilized by the purchaser?
A: Yes.
Q: And it was only because Mr. Moore was reluctant or recalcitrant that you didn't make the deal?
A: Yes, sir.
Q: So nothing changed about the deal except Mr. Moore's health and ideas about his property?
A: Yes.

(Emphasis supplied).

The trial court also rejected the self: serving testimony of Gosslee that the "deal was dead," and in its opinion stated:

In this case, this court does not find the declaration of the original negotiations as dead sufficient to warrant a break in continuity. As previously mentioned, every other condition-the property, and the parties-remain the same.

The totality of the record in this case certainly indicates that one detail of the ultimate transaction had not yet come into existence, i.e., the innovative financing suggested, not by Gosslee, but by Bradshaw. As dramatically as Gosslee urged that the "deal was dead," it obviously was not.

There was a plethora of testimony presented to the trial judge in which Coleman indicated his bona fide belief that ULCC was still representing Bradshaw. Coleman testified he had never heard of anyone else representing him until late. Coleman stated he had a valid oral agreement with Bradshaw, which was a continuation of the written exclusive representation and that Gosslee was going forward performing services for Bradshaw in connection with an existent relationship with ULCC. In Coleman's view, ULCC never "abandoned the Bradshaw project" and thus the representation was not "dead." Gosslee never told ULCC the "deal was dead."

Obviously, there is a distinct difference in opinion between Coleman and Gosslee regarding whether the Pines Road/70th Street transaction was "dead." The trial judge was required to make a finding of fact. He did. The conclusion of the trial judge in this regard was certainly justified based on the evidence. It is inappropriate for the appellate court to second guess the trial judge's credibility determination absent a finding of manifest error.

It also cannot be accurately concluded that the sudden exit of Gosslee, vis-à-vis the Pines Road/70th Street transaction, and her quickly arranged exclusive agreement with Bradshaw did not include surreptitious behavior by Gosslee. No "coincidence" occurred in Bradshaw's being signed by Gosslee to an exclusive agreement at the expiration of 30 days and Gosslee's inability, due to the status of her license, to create and execute her "exclusive" agreement until that very day. Gosslee informed only Bradshaw that her departure from ULCC, "was a possibility,"

prior to notifying ULCC that she was planning to leave. Gosslee even overheard a conversation between Bradshaw and Coleman in which they discussed Coleman continuing to represent him.

Furthermore, these independent "occurrences" accurately present an additional basis to support the trial judge's rejection of Gosslee's testimony as to the "break in continuity." Upon Gosslee's physical departure, ULCC requested she return all files taken from ULCC without authorization. There were multiple references to this intentional behavior of Gosslee. Yet Gosslee, as talented and bright as she seems stated the following:

Q. Ms. Gosslee, as far as taking files, you just said that you did take the file on the Pines and 70th transaction when you resigned from ULCC; is that correct?
A. Accidentally, along with some other accidental ones .

(Emphasis supplied).

Gosslee's claim that the Pines Road/70th Street transaction file was taken "accidentally" allows the inference to be drawn that she did not have any right, at all, to take that file. Certainly, as an apparent defense against allegations of improper activity on her part, Gosslee's "explanation" was at best disingenuous. These activities and explanations by Gosslee present significant support for the trial judge's rejection of Gosslee's position that there had been a break in continuity.

Ultimately, upon review of the entirety of the testimony, it can be easily concluded that Gosslee was actually not the moving cause of the ultimate sale. These three factors are relevant to this conclusion: (1) Bradshaw established an ongoing relationship with ULCC, with whom Gosslee was employed; (2) Hutchison, a property owner, made it known that the sale, after initial negotiations had not proven productive, might still be viable; and, (3) Bradshaw, who had an ongoing relationship with ULCC, developed an innovative form of financing the transaction. Certainly, Gosslee was a conduit of information, but her primary claim to a fee from the Pines Road/70th Street transaction was a concocted "new arrangement" with Bradshaw which she concealed from ULCC.

Having concurred in most of the majority opinion, the conclusion of the majority ordering a reversal of the trial judge's ruling as to the Pines Road/70th Street transaction is erroneous. Therefore, I respectfully dissent and would affirm that portion of the trial court's judgment.

      They did not testify as to who got the remaining 5%.

      By her second assignment of error, Ms. Gosslee also argues that the notion of procuring cause is intended to apply between an agent and a client (buyer or seller), and not between two agents, a distinction this court recognized in Price Farms Inc. v. McCurdy , 45,409 (La. App. 2 Cir. 7/7/10), 42 So.3d 1099 (we stated that as between a seller's agent and a buyer's agent, a claim based on procuring cause was "more tenuous"). We still acknowledge this conceptual distinction, but, on the instant record, we decline to jettison the analytic framework of procuring cause that guided the parties' presentation of evidence and informed the district court's factfinding. We therefore pretermit any consideration of this portion of Ms. Gosslee's second assignment.

      Ms. Gosslee shows that the 1995 memos were never signed by her; however, the copy of her 1997 commission schedule, filed in evidence as Exhibit D: 31, also appears not to be signed by her. Ms. Gosslee has not contended that the commission schedule is invalid for this deficiency.


author: BROWN, C.J.

text:
    Dustin B. PATTERSON, Plaintiff-Appellant v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ANPAC Louisiana Insurance Company, CLOCO, LLC, and Todd Cloinger, Defendants-Appellees
    No. 51,620-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 15, 2017
    MORRIS, DEWETT & SAVOIE, LLC By: B. Trey Morris Justin C. Dewett Meagan E. Shadinger, Shreveport, Counsel for Appellant
    LUNN, IRION, SALLEY, CARLISLE & GARDNER, APLC By: Ronald E. Raney, Shreveport, Counsel for Appellee, ANPAC Louisiana Insurance Company
    Before BROWN, STONE, and DREW (Ad Hoc ), JJ.
   BROWN, C.J.

Plaintiff, Dustin B. Patterson, filed suit against defendants, State Farm Mutual Automobile Insurance Company, ANPAC Louisiana Insurance Company, CLOCO, LLC, and Todd Cloinger, seeking damages for injuries he sustained in an automobile accident that occurred on June 23, 2014. Prior to trial, Patterson settled his claims against Cloinger (the driver of the other vehicle), State Farm (Cloinger's liability insurer), and CLOCO (the owner of the vehicle driven by Cloinger) for $50,000. Additionally, ANPAC (Patterson's UM insurer) tendered to Patterson UM benefits in the amount of $60,000.

The case proceeded to a jury trial against ANPAC. The jury attributed 100% of the fault for the accident to Cloinger, found that Patterson suffered damages as a result of the collision, and awarded him $13,632.63 in past medical expenses; $5,000 in future medical expenses; and $5,000 for his pain and suffering, for a total award of $23,632.63. On November 28, 2016, the trial court rendered a final judgment in accordance with the jury's verdict and, inter alia , "ORDERED, ADJUDGED, AND DECREED that in applying the stipulations in this matter, no further money is owed by defendant, ANPAC LOUISIANA INSURANCE COMPANY, to plaintiff, DUSTIN PATTERSON." Plaintiff has appealed, urging that the trial court erred in granting defendant's motion in limine which limited evidence of Patterson's past and future medical expenses to the contractually discounted rates paid by his insurer and thus denied him the opportunity to recover the full benefit of the "write off" amounts.

DISCUSSION

ANPAC filed a motion in limine seeking to limit Patterson from presenting to the jury evidence of any medical expenses in excess of the contracted rate paid by his health insurer. This motion was opposed by plaintiff. The trial court granted ANPAC's motion on May 23, 2016. Jury trial was held July 25-27, 2016. On the first day of trial, the parties put several stipulations on the record, including that the $110,000 received by Patterson pretrial would be credited against any judgment entered against ANPAC. Also stipulated to by the attorneys was the amount of past medical expenses potentially recoverable by plaintiff as limited by the trial court's evidentiary ruling. Patterson's counsel re-urged his objection to the trial court's evidentiary ruling for the record. In accordance with its pretrial ruling, the trial court only allowed plaintiff to introduce the contractually discounted amounts (which totaled $13,632.63) paid by his health insurer to medical providers as evidence of plaintiff's past medical expenses.

The trial court cited the recent supreme court case of Hoffman v. 21st Century North America Insurance Co. , 14-2279 (La. 10/02/15), 209 So.3d 702, and noted that plaintiff did not have the obligation to pay the "write-off" amounts under the Balance Billing Act in support of its ruling. Health Care Consumer Billing Disclosure Protection Act, also known as the "Balance Billing Act", La. R.S. 22:1871, et seq.

Dustin Patterson was the victim of a car wreck caused by a tortfeasor found by the jury to be 100% at fault. Plaintiff sought medical attention for his injuries, and his medical providers were paid by his health insurer, Blue Cross, which was entitled to a discount as a result of collective bargaining. All of plaintiff's medical providers accepted the discounted amount ($13,632.63) rather than the customary charge for patients with no health insurance ($63,072.88), which means these providers "wrote off" $49,440.25, the difference between their customary charges and the discounted amounts they accepted from Blue Cross. According to Patterson, the trial court's ruling was legally erroneous because it failed to allow him, the tort victim, to realize the "benefit of the bargain" and recover the write-off amount of $49,440.25, considering the reduction in his patrimony that occurred when he paid health insurance premiums to Blue Cross for his medical insurance. We agree with Patterson's argument.

The collateral source rule is a rule of evidence and damages that provides that a tortfeasor may not benefit, and an injured plaintiff's tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor's procuration or contribution. Bozeman v. State , 03-1016 (La. 07/02/04), 879 So.2d 692 ; Louisiana Dept. of Transportation and Development v. Kansas City Southern Ry. Co., 02-2349 (La. 05/20/03), 846 So.2d 734. The payments received from the independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer, and a tortfeasor's liability to an injured plaintiff should be the same, regardless of whether or not the plaintiff had the foresight to obtain insurance. Id. at 739-40. As a result of the collateral source rule, the tortfeasor is not able to benefit from the victim's foresight in purchasing insurance and other benefits. Hoffman, 209 So.3d at 704 ; Bozeman, supra at 698 ; Suhor v. Lagasse , 00-1628 (La. App. 4 Cir. 09/13/00), 770 So.2d 422, 423. The major policy reason for applying the collateral source rule to damages has been, and continues to be, tort deterrence. Bozeman, 879 So.2d at 700. However, the supreme court in Hoffman , supra at 706, observed that "in both Bozeman and Bel lard , we emphasized a fundamental consideration for application of the collateral source rule, in addition to tort deterrence, is 'whether the victim, by having a collateral source available as a source of recovery, either paid for such benefit or suffered some diminution in his or her patrimony because of the availability of the benefit, such that no actual windfall or double recovery would result from application of the rule.' "

From an evidentiary perspective, the collateral source rule bars the introduction of evidence that a plaintiff has received benefits or payments from a collateral source independent of the tortfeasor's procuration or contribution. Bozeman, supra . As in the instant case, the issue typically arises at trial in the form of a motion in limine. Id. See also Terrell v. Nanda , 33,242 (La. App. 2 Cir. 05/10/00), 759 So.2d 1026 ; Suhor, supra.

The trial court is granted broad discretion in its evidentiary rulings which are not to be disturbed on appeal absent a clear abuse of discretion. Ryan v. Case New Holland, Inc. , 51,062 (La. App. 2 Cir. 12/22/16), 211 So.3d 611 ; Allums v. Parish of Lincoln , 44,304 (La. App. 2 Cir. 06/10/09), 15 So.3d 1117, writ denied , 09-1938 (La. 11/20/09), 25 So.3d 803. A motion in limine presents an evidentiary matter that is subject to the great discretion of the trial court. Heller v. Nobel Insurance Group , 00-0261 (La. 02/02/00), 753 So.2d 841 ; Ryan, supra; Taylor v. Dowling Gosslee & Associates, Inc. , 44,654 (La. App. 2 Cir. 10/07/09), 22 So.3d 246, writ denied , 09-2420 (La. 02/05/10), 27 So.3d 299.

On appeal, this Court must consider whether the complained of ruling was erroneous and whether the error affected a substantial right of the party. Ryan, supra; Crisler v. Paige One, Inc. , 42,563 (La. App. 2 Cir. 01/09/08), 974 So.2d 125 ; Graves v. Riverwood International Corp. , 41,810 (La. App. 2 Cir. 01/31/07), 949 So.2d 576, writ denied , 07-0630 (La. 05/04/07), 956 So.2d 621. The determination is whether the error, when compared to the record in its entirety, has a substantial effect on the outcome of the case. Ryan, supra; Gandhi v. Sonal Furniture and Custom Draperies, L.L.C. , 49,959 (La. App. 2 Cir. 07/15/15), 192 So.3d 783 ; Graves, supra . Put differently, if a ruling's effect on the outcome is insubstantial, reversal is not warranted. Board of Sup'rs of La. State University v. Boudreaux's Tire and Auto Repair, LLC , 13-0444 (La. App. 4 Cir. 03/05/14), 133 So.3d 1262, writ denied , 14-0942 (La. 08/25/14), 147 So.3d 1118 ; Gibson v. Louisiana Rice Mill, L.L.C. , 13-265 (La. App. 3 Cir. 10/09/13), 2013 WL 5539299 (unpublished), writ denied , 13-2899 (La. 02/21/14), 134 So.3d 584 ; Wright v. Bennett , 04-1944 (La. App. 1 Cir. 09/28/05), 924 So.2d 178. The party alleging error has the burden of showing that the error was prejudicial to his case. Ryan, supra; State Farm Mutual Automobile Association v. Carter , 46,608 (La. App. 2 Cir. 11/02/11), 77 So.3d 1036 ; Graves, supra .

We will first address defendant's argument regarding the Balance Billing Act and its alleged limitation on the collateral source rule. As noted by this court in Rabun v. St. Francis Medical Center, Inc. , 50,849 (La. App. 2 Cir. 08/10/16), 206 So.3d 323, 329 (on rehearing):

The Balance Billing Act prohibits a contracted health care provider from billing, or attempting to bill, an injured party for an amount greater than the contracted reimbursement rate when that injured party has medical insurance.... Pursuant to the collateral source rule, an injured plaintiff's tort recovery may not be reduced as a re sult of receiving compensation from independent sources. However, the opinion of this Court focuses strictly on what a medical provider, and not a plaintiff, can recover from a tortfeasor. Notably, it does not in any manner whatsoever address the collateral source rule . (Emphasis added).

The only connection the Balance Billing Act has with this case is that its provisions are applicable to prevent plaintiff's medical providers from collecting or attempting to collect the "write-off" amounts from plaintiff (and there are no allegations whatsoever that any of the providers in this case have done so).

While Hoffman, supra , is the supreme court's latest case involving the collateral source rule in Louisiana, its holding, that the collateral source rule does not apply to attorney-negotiated write-offs or discounts for medical expenses obtained as a product of the litigation process, is arguably inapplicable to the instant case, based on the reasoning underlying the Court's holding in Hoffman , which was that the plaintiff neither incurred any additional expenses to receive the attorney-negotiated write-off, nor suffered any diminution in his patrimony. Id. at 708-09. In the instant case, Patterson paid monthly premiums to Blue Cross, who, pursuant to contractual arrangements with plaintiff's providers, obtained adjustments to the cost of medical services rendered to plaintiff, its insured. Plaintiff had his patrimony diminished to the extent that he had to pay premiums to secure the benefits of the insurance. See Griffin v. Louisiana Sheriff's Auto Risk Ass'n , 99-2944 (La. App. 1 Cir. 06/22/01), 802 So.2d 691, writ denied , 01-2117 (La. 11/09/01), 801 So.2d 376.

The limitation of the Hoffman court's holding to its facts was recognized by the Fifth Circuit in Lockett v. UV Insurance Risk Retention Group, Inc. , 15-166 (La. App. 5 Cir. 11/19/15), 180 So.3d 557 (which held that the collateral source rule is applicable in cases where medical discounts are negotiated by the plaintiff); the First Circuit in Johnson v. Neill Corp. , 15-0430 (La. App. 1 Cir. 12/23/15), 2015 WL 9464625 (unpublished), writs denied , 16-0137, 160147 (La. 3/14/16), 189 So.3d 168, 1070 (which held that the collateral source rule is applicable in cases where medical discounts are gratuitously granted as a professional courtesy); and, the Third Circuit in Royer v. State, DOTD , 16-534 (La. App. 3 Cir. 01/11/17), 210 So.3d 910, writ denied , 17-0288 (La. 04/24/17), 221 So.3d 69 (which held that the collateral source rule is applicable to cases in which the collateral source is a plaintiff's employer's workers compensation carrier and the tortfeasor is the DOTD, both of whom share coextensive, solidary obligations to reimburse the tort victim for lost wages and medical expenses).

In Bozeman, supra at 699, the supreme court observed that the so-called "windfall" of the collateral source rule never in fact occurs when the injured party's patrimony has been diminished to the extent that the party was forced to recover against outside sources, and the diminution of his patrimony constituted additional damages he suffered.

Patterson had his patrimony continually diminished to the extent that he had to pay premiums in order to secure the benefits of health insurance coverage from Blue Cross. To the extent that the write-offs from his medical providers were procured through the payment of plaintiff's premiums to Blue Cross, they cannot properly be considered a "windfall" to the plaintiff. As held by the First Circuit in Griffin, 802 So.2d at 715 :

[T]he collateral source rule is applicable to contractual write-offs procured by an insurance company in exchange for providing a volume of business and evidence of these amounts are to be excluded from a jury's consideration of an award for medical expenses. We note that application of the [collateral source] rule under these circumstances is directly in furtherance of the policy considerations underlying the rule. Because the rule would have no effect on the contractual agreement between medical providers and medical insurers, it would be in furtherance of decreased, more affordable medical costs for all of society; it would deter tortious conduct rather than inure to the benefit of a tortfeasor, and it would encourage individuals to obtain and secure health insurance coverage.

As did the courts in Johnson, supra , and Lockett, supra , both rendered after the supreme court's opinion in Hoffman, supra , we find that, as set forth by the Court in Bozeman , supra at 706, "where plaintiff's patrimony has been diminished in some way in order to obtain the collateral source benefits, then plaintiff is entitled to the benefit of the bargain, and may recover the full value of his medical services, including the 'write-off' amount." The trial court erred in concluding otherwise, based only upon the holding of the supreme court in Hoffman, supra , and defense counsel's misplaced argument about the Balanced Billing Act. Therefore, we find that the trial court erred in granting defendant's motion in limine and limiting Patterson's evidence of medical expenses to the amount paid by his health insurer.

However, our inquiry does not end there. As noted above, the determination must also include whether this error, when compared to the record in its entirety, has affected a substantial right of the party or has had a substantial effect on the outcome of the case. Ryan, supra ; Gandhi, supra ; Graves, supra . Plaintiff, as the party alleging error, has the burden of showing that the error was prejudicial to his case. Ryan, supra ; Graves, supra .

As noted by the parties in their pretrial stipulation, the $110,000 received pretrial by Patterson from defendants in full and partial settlement of his claims was to be credited against any judgment rendered against ANPAC by the jury. After finding Cloinger, the other driver, to be 100% fault for the accident, the jury awarded plaintiff damages of $23,632.63. Of this amount, $13,632.63 was for past medical expenses and $5,000 was for future medical expenses. Because the jury's award of $23,632.63 is less than the pretrial settlement amount, the judgment rendered by the trial court simply stated that no further money was owed to plaintiff by defendant ANPAC.

In his brief, the only relief sought by plaintiff is that this Court increase the jury's award to the undiscounted amounts for past and future medical expenses, i.e., figures inclusive of the "write-off" amounts not presented to the jury. The undiscounted amount of past medical expenses is $63,072.88. By dividing the amount paid to medical providers by Blue Cross from the undiscounted amount of past medical expenses, we come up with a discount of .216 and a "write-off" percentage of .784. Then, by dividing the amount of the future medical expense award, $5,000 by .216, we come up with a projected undiscounted amount for future medical expenses of $23,148.15. When we add these two undiscounted amounts to the $5,000 awarded by the jury for pain and suffering, the total damage award is $91,221.03, which is still less than the $110,000 plaintiff got in pretrial settlements. Therefore, the judgment of the trial court, rendered in accordance with the jury's verdict, would be unaffected by the change, and plaintiff has failed to establish that the erroneous evidentiary ruling was prejudicial to his case. As such, we affirm the trial court's judgment.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Costs are assessed equally to plaintiff, Dustin B. Patterson, and defendant, ANPAC.

      Plaintiff filed a writ with this Court, which declined to exercise its supervisory jurisdiction under Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc. , 396 So.2d 878 (La. 1981).

      See also Anderson v. Ochsner Health System , 13-2970 (La. 07/01/14), 172 So.3d 579, 597 (Guidry, J., dissenting) ("[T]he legislature perceived a problem with improper billing practices and sought to prohibit health care providers from collecting or attempting to collect from an insured patient any amount either owed by the health insurer or in excess of the contracted reimbursement rate. La. R.S. 22:1874(A)(1). Consequently, the legislature [in the Balance Billing Act] outlawed such practices and then expressly provided ... remedies for enforcing that provision.")