author: SAUNDERS, Judge.

text:
    Melba Lee SEE v. ENTERGY CORPORATION, et al.
    No. 09-535.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Rehearing Denied Dec. 16, 2009.

      Joseph R. Ballard, Attorney at Law, Baton Rouge, LA, for Defendant Appellee, Entergy Gulf States, Inc.
    Matthew Joseph Hill, Jr., Attorney at Law, Lafayette, LA, for Defendant Appellant, Laura Ann Guilbeau, Douglas C. Longman, Jr.
    Longman Russo, APLC, Lafayette, LA, for Defendant Appellant, BellSouth Telecommunications, Inc.
    Bret Christopher Beyer, Attorney at Law, Lafayette, LA, for Plaintiff Appellee, Melba Lee See.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   SAUNDERS, Judge.

_JjThis case addresses the trial court’s granting of a Judgment Notwithstanding the Verdict (JNOV) where it reapportioned fault between defendants, increased damages for the plaintiff, and awarded the plaintiff attorney’s fees and costs.

For the following reasons, we affirm in part and reverse in part the trial court’s granting of the JNOV.

FACTS AND PROCEDURAL HISTORY

This case arises from an October 20, 2005 rear-end automobile accident. Melba See (hereinafter referred to as “See”) was southbound on Hwy. 182 in St. Landry Parish when she came upon what she believed to be an electrical wire dangling in her lane of traffic. In an effort to avoid the wire, See slowed and/or stopped several feet short of the impediment. It was at this time that her vehicle was struck from behind by an SUV driven by Laura Ann Guilbeau (hereinafter referred to as “Guil-beau”).

Initially, the defendants named in this suit were: Entergy Corporation, Renaissance Media (cable television provider), State Farm, and Guilbeau. Once it was determined that the line hanging over the road was not an electrical wire, but rather a telephone cable, Entergy and Renaissance Media were dismissed from the suit. BellSouth Telecommunications (hereinafter referred to as “BellSouth”) was added as a defendant in 2007.

As a result of the accident, See claimed to have suffered extensive head, neck, back, and leg injuries, as well as psychological problems. The back injury was serious enough to require a lumbar surgery and fusion with plates and screws. It is unclear how successful the surgery was, and it is possible that the damage could be permanent. See has also experienced frequent headaches and a temporomandibular lajoint (TMJ) disorder. She claims that these injuries and the strain they put on her daily life have led to depression and an adjustment disorder. It has been noted that See had a history of back problems before the time of the accident.

A three-day jury trial took place, beginning on August 27, 2008. Upon conclusion of the trial, the jury found the fault to lie eighty percent (80%) with Guilbeau and twenty percent (20%) with BellSouth. Damages were awarded as follows:

A. physical injury, pain and suffering: $ 75,000.00
B. mental and emotional pain and suffering: $ 25,000.00
C. permanent disability: $ 40,000.00
D. past loss of earnings: $ 45,000.00
E. future loss of earning capacity: $ 15,600.00
F. past medical expenses: $138,000.00
G. future medical expenses: $ 5,000.00
H. loss of enjoyment of life: $ 0.00

On September 30, 2008, See moved for a JNOV, or in the alternative, a New Trial, on both the allocation of fault and what See described as the “abusively low damage awards.” The motion was granted by the trial court, altering the allocation of fault to fifty percent (50%) each to Guil-beau and BellSouth. The trial court also increased damages award to See to the following:

A. physical injury, pain and suffering: $150,000.00
B. mental and emotional pain and suffering: $ 50,000.00
C. permanent disability: $100,000.00
F. past medical expenses: $141,767.59
H. loss of enjoyment of life: $ 45,000.00

Along with the JNOV, the trial court also conditionally granted See’s motion for a New Trial, limited to the issues of liability as between Guilbeau and BellSouth, and damages. Finally, the trial court apportioned court costs equally between Guil-beau (and State Farm as her insurer) and BellSouth, and awarded See with attorney’s fees and costs as a result of Bell-South’s failure to make admissions on the | Jssue of whether BellSouth was the owner of the cable that caused the accident.

Guilbeau and BellSouth have appealed the judgment and asserted the following assignments of error. See answered the appeal and has asserted her desire to have the judgment revised and modified, as indicated below.

ASSIGNMENTS OF ERROR:

BellSouth’s Assignments of Etror

I. The trial court erred in granting a JNOV, and, alternatively, a new trial on the issue of liability and reapportioning fault between Guilbeau and BellSouth.

2. The trial court erred in granting a JNOV, and, alternatively, a new trial on the issue of quantum and increasing both general and special damages.

3. The trial court erred in awarding attorney’s fees and costs to See under La.Code Civ. P. art. 1472.

4. The trial court erred in apportioning court costs equally between Guil-beau and BellSouth.

Guilbeau’s Assignment of Error

The trial court in its Judgment on Motion for Judgment Notwithstanding the Verdict and Alternatively for a New Trial erred in finding that defendant, [Guil-beau], was equally negligent with the defendant, [BellSouth],

See’s Request for Revision and Modification

1. See requests that liability percentages be reassigned as ninety percent (90%) to BellSouth and ten percent (10%) to Guilbeau.

2. See requests that damages be increased in the following categories to the requested amounts:

A. physical injury, pain and suffering: $250,000.00
B. mental and emotional pain and suffering: $150,000.00
H. loss of enjoyment of life: $100,000.00

LAW AND DISCUSSION ON THE MERITS:

Here, we are reviewing the trial court’s granting of a JNOV and, alternatively, a New Trial, on the issues of reallocation of fault and quantum of damages awarded. 14We will also review the trial court’s apportionment of costs and its award of attorney’s fees and costs against BellSouth.

The Louisiana Supreme Court, in Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 882 (La.1991), stated the following:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Scott [v. Hospital Service Distyict No. 1, 496 So.2d 270 (La.1986)]. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

This court has noted in Domingue v. Excalibar Minerals of La., L.L.C., 05-1018, p. 4 (La.App. 3 Cir. 7/26/06), 936 So.2d 282, 286, writs denied, 06-2480, 06-2489 (La.2/2/07), 948 So.2d 1077 and 1078, that:

The standard of review for a JNOV on appeal is a two-part inquiry: first, the appellate court must determine if the trial court erred in granting the JNOV, which is done by using the same criteria used by the trial judge in deciding whether to grant the motion. Second, after determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review.

Liability/Apportionment of Fault

We will begin our discussion by looking at the trial court’s reapportionment of fault as to Guilbeau and BellSouth. It must first be determined whether the trial court was correct in granting the JNOV. We then must examine whether the facts and inferences point so strongly in favor of the moving party such that no reasonable juror could have reached a different verdict on the issue. Thus, the question becomes | ¿whether a reasonable juror could have found that the fault in this case should have been apportioned at eighty percent (80%) to Guilbeau and twenty percent (20%) to BellSouth. “The rigorous standard of JNOV is based upon the principle that ‘when there is a jury, the jury is the trier of fact.’ Joseph [v. Broussard Rice Mill, Inc.], 00-0628 at p. 5 [(La.10/30/00)], 772 So.2d [94, 99] (quoting Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270, 273 (La.1986)).” Trunk v. Medical Center of Louisiana, 04-0181, p. 5 (La.10/19/04), 885 So.2d 534, 537.

To determine whether the jury’s verdict was unreasonable, we will examine the liability of the parties using the same standards applied to juries. The Louisiana Supreme Court, in Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967, 974 (La.1985), issued the standard for allocating fault among multiple parties.

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

Before examining the Watson factors, we note a previous decision by this court in Layssard v. State, Dep’t of Public Safety and Corrections, 07-78, p. 4 (La.App. 3 Cir. 8/08/07), 963 So.2d 1053, 1058, writ denied, 07-1821 (La.11/09/07), 967 So.2d 511, stating that these factors guide the appellate court’s determination, but cautioning that “the allocation of fault is not an exact science, nor is it the search for a precise ratio. Instead, we are determining whether the allocated fault falls within a certain range that doesn’t violate the manifest error rule.

Inadvertence/Awareness of the danger: This first factor from Watson essentially addresses whether the conduct that caused the accident was deliberate or j^accidental. An analysis of the record with regard to this factor leads us to find that the pendulum fails to swing in either direction. The acts attributed to both Gu-ilbeau and BellSouth fall within the realm of inadvertence. Certainly, Guilbeau did not intentionally run into the back of See’s vehicle, putting her own safety at risk as well as that of the appellee. No one makes that claim. We, likewise, fail to find that BellSouth acted with intent in this matter. Although their ownership of the cable that caused the accident is not a question before us, we find no evidence in the record to support that BellSouth knew that the line existed or that it had fallen onto the roadway.

Gravity of the risk: We agree with the argument submitted by BellSouth citing Hager v. State, exrel. Dep’t of Transportation and Development, 06-1557 (La.App. 1 Cir. 1/16/08), 978 So.2d 454, writs denied, 08-347 and 08-385 (La.4/18/08) 978 So.2d 349. In Hager, the court classified the risk associated with DOTD’s failure to post the necessary sign indicating a curve on Highway 308 as passive. The driver, who momentarily averted her attention from the road and veered off at the curve, was said to have created an active risk. We find that although the facts are not identical to the current case, the principle is the same. As did the court in Hager, we find Guilbeau’s momentary lapse in attention while driving was the more significant of the risks created in the current matter.

Significance of what was sought: When addressing this factor, courts generally look to the parties’ motivations for their given conduct. In the present matter, we find no significance related to either party’s motive.

Extenuating circumstances: We find that the record reflects no relevant extenuating circumstances that would weigh more favorably for one party over the 17other.

Capacity of the actors: When addressing the capacities of the parties, we look to their ability to have prevented the accident from occurring. BellSouth contends that it should be vindicated to a degree for not having been aware that it was the owner of the cable and for having no knowledge that the cable was down. We disagree. BellSouth suggests that because it discontinued the use of overhead lines over twenty (20) years ago, it is somehow not responsible for the lines that were left standing despite their nonuse. We disagree. BellSouth had the capacity, had it adequately kept track of its lines, to prevent the accident by properly maintaining its cables.

All that being considered, we are guided by certain principles with regard to accidents caused by the carelessness of other drivers.

For example, a higher percentage of fault may be attributed the driver with “the superior (and sole) opportunity at the time of the accident, or the ‘last clear chance,’ to control the movement and speed of her vehicle.” See Hager, 978 So.2d at 470. Further, “[d]rivers of automobiles are under a never ceasing duty to maintain a proper lookout and to see what should be seen.” Davis v. Smith, 35,117, p. 6 (La.App. 2 Cir. 10/02/01), 796 So.2d 765, 769, writ denied, 07-2887 (La.1/25/02), 807 So.2d 250.

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” La. R.S. 32:81(A). “A motorist’s duty of reasonable care includes the duty to keep his vehicle under control.” Sinitiere v. Lavergne, 391 So.2d 821, 826 (La.1980) (citations omitted).

“Further, a motorist has a duty to maintain a proper lookout for hazards which by the use of ordinary care and observation he should be able to see in time to avoid | ¡¡running into them.” Id.

“In order to avoid liability, a following motorist who rear-ends another vehicle must prove a lack of fault; he may do so by establishing that he had his vehicle under control, closely observed the lead vehicle and followed at a safe distance under the circumstances.” Taylor v. Voigtlander, 36,670, p. 4 (La.App. 2 Cir. 12/11/02), 833 So.2d 1204, 1206.

Our review of the jurisprudence makes it clear that Louisiana law places an unyielding duty on drivers to maintain proper care and to be ever-vigilant and in control of them vehicles. Guilbeau had been following See for more than a mile at the time of the accident. The accident occurred during daylight hours, and the sky was clear. The record reflects that no skid marks were left at the scene, suggesting that See did not come to a screeching halt just before reaching the cable. It is clear to this court that more careful driving on the part of Guilbeau would have prevented the accident from taking place. The heavy duty placed by Louisiana law on following motorists clearly supports the jury’s finding and renders a JNOV inappropriate in this case.

Having taken the previously discussed factors into account, we find that the heavy duty placed on See has not been satisfied. It is for these reasons that we find that the trial court should not have granted the JNOV on the issue of reapportioning fault between Guilbeau and BellSouth. Accordingly, we reverse the trial court’s adjustment of fault at fifty percent (50%) for each party and reinstate the jury’s verdict assigning fault at eighty percent (80%) to Guilbeau and twenty percent (20%) to Bell-South.

Damages

|9BellSouth contends that the trial court erred in granting the JNOV, and alternatively a New Trial, on the issue of quantum regarding: physical injury, pain and suffering; mental and emotional pain and suffering; permanent disability; past medical expenses; and, loss of enjoyment of life. We find no merit in this contention. We likewise find no merit in See’s argument that the damages awarded should be further increased for the categories of physical injury, pain and suffering, and mental and emotional pain and suffering. On the issue of loss of enjoyment of life, however, we find that damages should be increased.

The appellate court, in determining whether the trial court erred in granting the JNOV as to quantum, once again uses the criteria set forth in Scott, [496 So.2d 270], i.e., could reasonable men in the exercise of impartial judgment differ as to the fact that the jury award was either abusively high or abusively low. If the answer is in the affirmative, then the trial court erred in granting the JNOV, and the jury’s damage award should be reinstated. On the other hand, if the answer is in the negative, then the trial court properly granted the JNOV, and its damage award based on its independent assessment of the damages is the judgment of the trial court which is reviewed on appeal under the constraints of Coco [v. Winston Industries, Inc., 341 So.2d 332 (La.1976) ].

Anderson, 583 So.2d at 834.

As with our discussion on liability, we will first address whether the trial court was correct in granting the JNOV, and alternatively a New Trial, on each item of damages. If the trial court’s determination in granting the motion was proper, i.e., reasonable men in the exercise of impartial judgment could not have differed as to the fact that the jury award was abusively low, we will then review the amount set by the trial court under each item. In order for this court to disturb a quantum award made by the trial court, the record must show that the trial court abused its “much discretion.” Coco, 341 So.2d at 335.

Physical injury, pain and suffering; and, permanent disability: The initial |infigure awarded by the jury for physical injury, pain and suffering was $75,000.00. Permanent disability was at $40,000.00. We will address these categories together. In examining the record, it is clear that the collision was a serious one. Although the airbags on both vehicles failed to deploy, the impact was severe enough to break the seat back in See’s car and warrant a 911 call. As a result of the accident, See suffered an injury to her L5-S1 disk, impinging on the nerve roots to her spine and legs. This injury resulted in a foot drop requiring See to walk with a cane. See’s doctors suggest that there will be permanent pain in her legs. They have also found that her subjective symptoms correlated with the objective data from EMG/NCV tests.

See also suffered from severe headaches from the time immediately following the accident all the way up to trial. These headaches were severe enough for See’s personal doctor, Dr. Polanco, to refer her to a neurologist, Dr. Snatic. Dr. Snatic was not able to find a medication that could adequately control the headaches until 2008, approximately three (3) years after the accident. See testified that she is now only suffering from one (1) or two (2) bad headaches a month.

Moreover, See developed a bilateral TMJ disorder diagnosed by Dr. Pearce, a dentist, who limits his practice to treating and diagnosing TMJ disorders. Based on her condition and the time period in which the disorder developed, Dr. Pearce felt that the injury came as a result of the accident. To treat the injury, Dr. Pearce referred See to Dr. Briggs, who pulled some of See’s teeth and fitted her with a splint designed to alleviate the jaw and facial pain. See was instructed to wear the splint for six (6) to nine (9) months at all times, and it was suggested that she may have to sleep with the device permanently.

In effort to controvert the injuries suffered by See, BellSouth argued that See | n suffered a previous back injury years earlier while employed with Wal-Mart. BellSouth argues that the current medical hardships are nothing more than flare ups of an old injury. We are not convinced. The prior injury to See was characterized as a muscle strain. There is no evidence in the record lending any credence to the assertion that the former injury was any more serious than originally believed. In fact, the record reflects that See had experienced no ill effects from muscle strain since 2002 when she visited a chiropractor. BellSouth further argues that the TMJ disorder was caused not by the accident, but rather by poor dental hygiene on the part of See. There is some merit to this argument. BellSouth points to Dr. Pearce’s testimony, in which he states that such a condition could result from poor hygiene, such as was the case with See. However, when asked his opinion on what ultimately caused the condition, Dr. Pearce concluded that it stemmed from the accident. We find this to be significant.

After reviewing the record, and for the above reasons, we find that the jury’s award of $75,000.00 was abusively low and that no reasonable jury, exercising impartial judgment, could have come to a different conclusion. Our finding is the same for the $40,000.00 award for permanent disability. As such, we find that the trial court was correct in granting the JNOV on the issue of quantum related to physical injury, pain and suffering and permanent disability. We further find that there was no clear abuse of discretion on the part of the trial court in increasing the awards in those categories to $150,000.00 and $100,000.00, respectively. These awards are adequate, and we thus reject See’s request that the physical injury, pain and suffering award be further increased to $250,000.00.

Mental and emotional pain and suffering: As was the case with the award 112for See’s physical injuries, we find that the trial court acted properly in granting the JNOV related to See’s mental and emotional suffering.

Dr. Snatic diagnosed See with depression shortly after the time of the accident and put her on anti-depressants, which she remained on until the time of trial and will likely continue to take indefinitely. He eventually referred See to Dr. Blackburn for further psychiatric evaluation and treatment. Dr. Blackburn ruled out the possibility of a bipolar disorder and gave the following testimony as to the accident’s impact on See’s mental and emotional health.

Q And is it the fact that she now has significant limitations on her physical activity, something she’s having a hard time — a real hard time accepting and coping with?
A It’s difficult for her to accept it. It frustrates her. She frequently pushes that level of activity and then pays the price for it as either go to bed, take more medicine, or have these mood swings. She hasn’t accepted it. The other problem is the physical pain, disability, and that it’s been frightening for her because she’s had some upsetting messages from her treating doctors—things like permanent nerve damage, things like the weakness in your legs is not going to get better, it might get worse. She has envisioned the worst case scenario and sees herself as maybe ending up in a wheelchair at some point in her life, and not too far down the line. We’ve been trying to help her get rid of those images, but that still has a ways to go.

Dr. Blackburn attributes all of See’s mental and emotional problems as being a result of the accident. For this reason, and those stated in the preceding paragraphs, we hold that the trial court properly found that the award of $25,000.00 was abusively low. Thus, we find that the granting of the JNOV was proper. Further, we find no clear abuse of discretion on the part of the trial court in raising the award to $50,000.00. However, we reject See’s argument to further raise the award to $150,000.00.

Past medical expenses: Unlike the more subjective general damages of mental | t3and emotional pain and suffering, past medical expenses presents the court with a concrete set of numbers to work through. The original allotment of damages for medical expenses, issued by the jury, totaled $138,000.00. There is no dispute that, at a minimum, this amount is owed to See for her medical expenses. The trial court raised that amount to $141,767.59. BellSouth argues that the $3,767.59 difference between the two totals is not attributable to the accident. This sum was charged by Dr. Pearce for the dental work performed in anticipation of treating See’s TMJ disorder. Without this preparatory work the TMJ treatment could not have been performed.

We have already discussed See’s TMJ disorder and how it relates to the accident at issue. Whether or not this dental work, in preparation of the treatment, was necessitated by the accident is irrelevant. As See correctly notes in her brief, this court addressed this exact issue in Hall v. State Farm Mutual Auto. Ins. Co., 94-867 (La.App. 3 Cir. 5/31/95), 658 So.2d 204. There, the plaintiff needed TMJ treatment. Before treatment could begin however, the plaintiff needed bridge to replace six (6) teeth that were missing prior to the accident that caused the TMJ. The cost of the bridge was included in the plaintiffs medical expenses even though her missing teeth were not accident related. In Hall we noted that “[r]egardless of the fact that six of Ms. Hall’s teeth were missing prior to the accident, she did not suffer from TMJ disorder until after the accident.” Hall, 658 So.2d at 207. Similarly, this poor condition of See’s teeth prior to the accident does not preclude her from receiving treatment for a condition caused by the accident.

For these reasons, we find that the trial court was correct in granting the JNOV on the issue of See’s past medical expenses. We also find that the increase in the award to $141,767.59 was appropriate. There was no abuse of discretion on the part 114of the trial court.

Loss of enjoyment of life: Oddly, the jury awarded no damages for See’s loss of enjoyment of life. Yet, the record is filled with testimony indicating that prior to the accident See was a generally happy person, who enjoyed her job and who had a pleasant personal life. “Loss of enjoyment of life, sometimes known as hedonic damages, refers to the detrimental alterations of a person’s life or lifestyle or a person’s inability to participate in the activities or pleasures of life that were formerly enjoyed.” McGee v. A C and S, Inc., 05-1036, p. 3 (La.7/10/06), 933 So.2d 770, 773.

The following testimony from the psychiatric assessment conducted by See’s treating psychiatrist at the time of the trial, Dr. Blackburn, gives some indication of how See’s life has been changed by the accident:

[Emotional] ability with crying spells, episodes of irritability and anger, a general loss of energy and enthusiasm for life, fear of future disability, a decreased sex drive, feelings of hopelessness and helplessness, and problems with memory and concentration... .[P]rior to the accident, she was considered to be an outgoing, positive person who enjoyed being with people, laughing, teasing and interacting positively. She was able to work regularly, gardened, enjoyed multiple recreational activities including socializing, fishing, camping, 4-wheeling, and gardening. Since the accident, she stated that “my whole life has changed,” she is discouraged, frustrated and depressed.

We find that no reasonable jury, exercising impartial judgment, could have come to the conclusion that no damages for loss of enjoyment of life were warranted. Accordingly, we find that the trial court was proper in granting the JNOV on this issue. The award of $45,000.00 set by the trial court on JNOV is, in our view, similarly too low — such that it is enough to qualify as an abuse of discretion. Whether or not a trial court has abused its discretion is ultimately a judgment call on the part of the appellate court. Coco, 341 So.2d 332. Although awards granted in prior, similar cases are, alone, not enough to justify a finding of abuse of discretion, they |1smay serve as a tool in gauging the propriety of an award. Id.

The strong likelihood of severe permanent damage coupled with the emotional and psychological toll that the accident has taken on See makes her case particularly compelling on the issue of loss of enjoyment of life. The testimony from Dr. Blackburn serves to reinforce what is plain to see. We are guided in our decision by another case recently before this court, Goutro v. Sullivan, 07-1430 (La.App. 3 Cir. 5/07/08), 986 So.2d 673, writ denied, 08-2139 (La.11/10/08), 996 So.2d 1077. In Goutro, a college student, on her way to class, was involved in a one car accident caused by poor road conditions on Highway 190. The accident left her with chronic pain in her back and knees. On appeal, a panel of this court found that the lowest reasonable amount that could be awarded for her loss of enjoyment of life was $50,000.00. The record in the matter before us paints a much dimmer picture for See’s future than the record before the court in Goutro. We find that $45,000.00 is still an abusively low figure, and that the trial court exercised an abuse of its discretion in making the award. Accordingly, we increase that the damages for loss of enjoyment of life to $100,000.00 — the lowest justifiable amount for that element of damages, based upon the testimony and facts contained in the record.

Attorney’s Fees

Louisiana Code of Civil Procedure Article 1466 addresses requests for admissions:

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Articles 1422 through 1425 set forth in the request or of the truth of any relevant matters of fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after | lf,commencement of the action and upon any other party with or after service of the petition upon that party.

Louisiana Code of Civil Procedure Article 1472 addresses the penalties imposed when a party refuses to admit the genuineness of the truth of any matter requested under Article 1466.

If a party fails to admit the genuineness of any document or the truth of any matter as requested under Article 1466, and if the party requesting the admission thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that the request was held objectionable pursuant to Article 1467, or the admission sought was of no substantial importance, or the party failing to admit had reasonable ground to believe that he might prevail on the matter, or there was other good reason for the failure to admit.

In the case before us, Bell-South contends that the trial court erred in its granting of attorney’s fees of $2,000 and costs of $4,324.96 against BellSouth for violations of the above articles. We disagree. When the truth of the issue in question is proven at trial, as was the case here—evidenced by the jury’s verdict and the trial judge’s judgment—the non-moving party must show that there was a reasonable ground to believe that it might prevail on the issue. We note that “[t]he trial court has broad discretion in regulating pretrial discovery, and its discretion should be honored absent evidence of abuse.” Brodtmann v. Duke, 98-1518, p. 6 (La.App. 4 Cir. 3/21/01), 803 So.2d 41, 44, writs denied, 01-3184 (La.12/05/01), 802 So.2d 637, and 02-334 (La.4/12/02), 813 So.2d 409 (citations omitted).

The purpose of sanctions against parties who unjustifiably resist discovery is to make the discovery articles effective. C.C.P. art. 1496 [now La. C.C.P. art. 1466] was designed to require the admission of facts which ought not to be disputed at trial, so as to eliminate the time, trouble and expenses of proving uncontroverted facts.

Boseman v. Orleans Parish School Board, 98-1415, p. 8 (La.App. 4 Cir. 1/06/99), 727 So.2d 1194, 1198, writ denied, 99-0390 (La.4/01/99), 742 So.2d 554.

In the instant case, once it became apparent to See that the wire hanging in the road was a telephone cable, BellSouth was added to the suit. BellSouth was allowed to inspect the wire on May 11, 2007 and denied that it was the owner. Soon thereafter, See sent Requests for Admissions to BellSouth asking that it formally acknowledge that the wire was, in fact, BellSouth’s telephone line. The request was refused. BellSouth was ultimately found, initially by the jury and then later by the trial judge, to be partially at fault for the accident that caused See’s injuries.

BellSouth contends that it was justified in denying the admissions because of its lack of records indicating that it had a cable line at that location, and because the site, where the accident took place, had been altered by the time BellSouth was added to the suit. We find, however, that the opportunity to inspect the cable on May 11, 2007, along with the knowledge that BellSouth was the only telephone company to ever provide service in the area, are enough to demonstrate that there was no legitimate justification for denying the admission. Recognizing the great deference owed to the trial court’s determination on the issue, we find that the trial court was correct in granting the motion for attorney’s fees and costs.

Court Costs

BellSouth asserts that the trial court erred in apportioning costs at an equal 50/50 share between Guilbeau and BellSouth. It contends that the initial jury verdict assigning liability at eighty percent (80%) to Guilbeau and twenty percent (20%) to BellSouth was proper, and that costs should be divided similarly. We disagree and are hesitant to disturb the trial court’s decision on how costs should be assigned.

Louisiana Code of Civil Procedure Article 1920 provides: “Except as otherwise | ^provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” The Louisiana Supreme Court has held, in Cajun Electric Power Co-op. v. Owens-Corning Fiberglass Corp., 616 So.2d 645 (La.1998), that a trial court’s assignment of costs, pursuant to Article 1920, is entitled to great discretion. Absent a showing of abuse of discretion on the part of the trial court, we will not disturb the trial court’s fair judgment. Although the trial court may assign costs at the percentages of liability assigned to the parties, it is not mandated to do so. See Rawls v. Morris, 470 So.2d 531 (La.App. 1 Cir.1985). We find that there was no clear abuse of discretion on the part of the trial court, and, accordingly, we find that costs were properly assigned in equal portions against Guilbeau and BellSouth.

CONCLUSION:

For reasons already given, we find that the trial court erred in granting the JNOV, and alternatively a New Trial, on the issue of reapportioning fault as between Guil-beau and BellSouth. Thus, we reverse the court’s ruling apportioning fault equally, and we reinstate the jury’s verdict on liability at eighty percent (80%) to Guilbeau and twenty percent (20%) to BellSouth. We affirm the trial court’s granting of the JNOV to increase damages for: physical injury, pain and suffering; mental and emotional pain and suffering; permanent disability; past medical expenses; and, loss of enjoyment of life. We also find that the increased damages assigned by the trial court were adequate and proper on all issues other than loss of enjoyment of life. On that issue, we find that damages should be raised to $100,000.00. Further, we affirm the trial court’s award of attorney’s fees and costs against BellSouth for violation of La.Code Civ. P. art. 1472. Lastly, giving great deference to the trial court’s | ^determination on the issue, we affirm the decision apportioning court costs equally between Guilbeau and Bell-South.

AFFIRMED IN PART, REVERSED IN PART, AFFIRMED AND AMENDED IN PART.


source: Caselaw Access Project

license: Public Domain

text:
    STATE In The Interest of V.B., A.B., P.B.
    No. 09-653.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Don M. Burkett, District Attorney, Anna L. Garcie, Assistant District Attorney, Many, LA, for Appellee, State of Louisiana.
    William Daniel, Dyess Dyess Law Firm, LLC, Many, LA, for Appellant, M.B.
    Brian Clayton, McRae Attorney at Law, Mansfield, LA, for Appellee, V.B., P.B., A.B.
    D. Scott Kendrick, Attorney at Law, Natchitoches, LA, for Appellee, R.B.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   SAUNDERS, Judge.

11 This is a juvenile proceeding where the sole issue is custody of the couple’s three children. After the children were adjudicated as children in need of care in accordance with La.Ch.Code art. 666, following the subsequent permanency hearing, the father was granted sole custody, with supervised visitation given to the mother.

The mother appealed this decision, alleging one assignment of error. We find no error by the trial court, and therefore, affirm.

FACTS AND PROCEDURAL HISTORY:

M.B. (Appellant) was married to R.B., and the couple had three children: V.B., A.B., and P.B. This case originated as a result of a filing by the Department of Social Services, Office of Community Services (OCS) due to a complaint that the children were being neglected and an allegation that Appellant was mentally unstable and using crack cocaine. The couple had a history of marital problems, including allegations of domestic violence perpetrated by both Appellant and R.B. The children were adjudicated as children in need of care and were taken into protective custody by the OCS on March 7, 2008.

Appellant was committed into the behavioral unit at Willis Knighton Hospital in Shreveport on March 11, 2008. She was released seventy-two hours later. R.B. denied any domestic violence towards Appellant, claiming that any physical action against her was in self-defense. R.B. then completed two counseling stints, one to deal with anger management, and another to improve his parenting skills.

At the permanency hearing on March 7, 2009, after hearing reports regarding the couple’s progress, and, inter alia, testimony from the parties and two of their three children, the trial court granted sole custody to R.B. with visitation to Appellant to be supervised by Appellant’s mother.

| ¡Appellant has appealed this judgment by the trial court, alleging the following single assignment of error:

ASSIGNMENT OF ERROR:

1. The trial court erred in awarding sole care and custody of the minor children to R.B. with supervised visitation to Appellant.

DISCUSSION OF THE MERITS:

Appellant argues that the trial court erred in awarding sole care and custody of the minor children to R.B. with supervised visitation to her. We find no merit in this argument.

The court’s determination in custody cases is entitled to great weight. Its decision is accorded much discretion and will not be reversed on appeal except in the clearest case of abuse of such discretion. In determining custody, the best interest of the child is paramount. The juvenile court must weigh the evidence to make its determination.

In Interest of Weaver, 430 So.2d 324, 326 (La.App. 3 Cir.1983).

Appellant contends that the trial court erred in failing to abide by the established presumption of La.Civ.Code arts. 132 and 134 and La. R.S. 9:335(A)(2)(b) that joint custody is the preferred method of resolving custody disputes, as it is necessary that there be clear and convincing evidence that must be produced to award sole custody to one parent. This argument is misguided.

The children in the case before us were already adjudicated as children in need of care in accordance with La.Ch.Code art. 666. As such, when the trial court awarded sole custody to R.B., it did so at the conclusion of a permanence hearing under La.Ch.Code art. 681(A)(1), which reads as follows:

A. In a case in which a child has been adjudicated to be in need of care, the child’s health and safety shall be the paramount concern, and the court may:
(1) Place the child in the custody of a parent or such other suitable | sperson on such terms and conditions as deemed in the best interest of the child including but not limited to the issuance of a protective order pursuant to [Louisiana Children’s Code] Article 618.

Therefore, in the case before us no presumption exists that joint custody was the preferred placement of the children. Rather, we must merely find that the trial court did not abuse its vast discretion in resolving these matters, as “the trier of fact ... is not disadvantaged by the review of a cold record and ... is in a superior position to observe the nuances of demean- or evidence not revealed in a record.” Adkins v. Huckabay, 99-3605, p. 15 (La.2/25/00), 755 So.2d 206, 215.

The record before us indicates that Appellant had a history of both prescription and illegal drug use. Although Appellant may have possessed prescriptions for the drugs she continued to test positive for, the level of those drugs appearing in her system suggested that Appellant continued abuse those prescription drugs.

Further, the record evidences that R.B. was suitable for effective parenting of the couple’s children. Ms. Marie Loftin, the foster care worker assigned to the case for Natchitoches OCS, provided evidence of the suitability of Appellant and R.B. when she stated at the permanency hearing:

As [Appellant] began to comply [with an intensive substance abuse treatment], she was not consistent with her attendance and she continued to test positive for prescription drugs in her system that based on what her doctor — the information that the doctor had given us, she should not have tested positive for those drugs had she been taking them as they were prescribed.
[R.B.] completed parenting and anger management classes with merit ... [W]e re-referred [R.B.] to Carol Jannick for judgment and insight counseling.... [R.B.’s] final report from Dr. Jannick said that he could effectively parent his children and use good judgment in dealing with [Appellant]. It has been this agency’s recommendation that [R.B.] receive custody of his children as a permanent plan for the children and |4that [Appellant] has visitation.

Josie Hamilton, a licenced addiction counselor and supervisor for the Natchi-toches Center for Addictive Disorders, treated Appellant. She corroborated Ms. Loftin’s report regarding Appellant by testifying to the following:

Q In your opinion, would [Appellant] be a good candidate to maintain her sobriety?
A She’s not maintaining her sobriety as far as our agency is concerned because she’s continued to test positive for medicine which we don’t know what doctors are prescribing to her because she refuses to sign a release. Also there was a time when she never could tell me where the medicine came from. She ... gave me the medicine she was taking, not the bottles, but she couldn’t tell me who prescribed them or where she got them back in August.

Dr. Carol Jannick, a licenced professional counselor with a PhD in counseling psychology also corroborated Ms. Loftin’s testimony. Dr. Jannick stated:

Q Do you believe that [R.B.] has the parenting skills and abilities necessary to have these children come in his life and be a good custodial parent?
A Yes, he does. He does have ... a very calm nature and that is a good thing with children. We ... watched two videos on parenting and I recommended two books to him and he got the books and we processed one together as far as parenting strategies, how to teach children responsibility and those types of things.
Q Do you believe that he was eager to learn and improve his parenting skills?
A Yes. He went over ... and above, let me tell you, most of my patients in his counseling. He was very cooperative. He didn’t miss his appointments. He called in-between. He was very conscientious.
Q Over all [sic] he seemed to be very stable?
A Yes.
Q He has a stable employment history, good home, kept his | r,appointments, neat appearance?
A Yes.

Further, even from a cold record, this court can surmise that Appellant had a tendency to fail to answer the questions asked of her while testifying and generally rambled in portions of her testimony in nearly an incoherent fashion. Meanwhile, R.B.’s testimony, from the perspective of the record, was clear and concise.

Finally, it is clear that the trial court concluded that Appellant was the party whose actions were the “catalyst” of most of the trouble the family endured. In its reasons for judgment, the trial court, after apologizing to R.B. for ever granting a protective order against him, stated:

I think that [Appellant] was out of control everything from crack to you name it and putting these kids at risk. [Appellant is] the catalyst behind all this. In my opinion, [Appellant is] the one that caused so many problems in this case. [Appellant has] been out of control. And I’m not relieving [R.B.] of some responsibility because it always takes two.

Accordingly, given the standard of review and the evidence in the record, we find no abuse of the vast discretion afforded to the trial court. These excerpts of testimony, coupled with the reasons for judgment given by the trial court, provide an overabundance of that which would be necessary for this court to find that the trial court did not abuse its discretion.

CONCLUSION:

Appellant raised one assignment of error. We found no abuse of discretion by the trial court. All costs of these proceedings are to be paid by Appellant.

AFFIRMED.


author: GREMILLION, Judge.

text:
    Jeanette HERNANDEZ, et al. v. DIVERSIFIED HEALTHCARE-ABBEVILLE, LLC d/b/a Maison Du Monde Living Center.
    No. CA 09-546.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Lawrence N. Curtis, Attorney at Law, Lafayette, LA, for Plaintiffs/Appellants, Jeanette Hernandez, Alvin Hernandez, Jr., Shawn P. Hernandez, Matthew D. Hernandez, Kansas A. Hernandez, Estate of Alvin Hernandez, Sr.
    Troy Allen Broussard, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Diversified Healthcare-Abbeville, LLC dba Maison du Monde Living Center.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

_JjThe plaintiffs, the widow and major children of Alvin Hernandez, Sr., appeal the judgment in favor of the defendant, Diversified Healthcare-Abbeville, LLC d/b/a Maison du Monde Living Center, sustaining its exception of prematurity. The trial court found that the plaintiffs’ claims sounded in medical malpractice and, therefore, must first be submitted to the medical review panel. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs filed suit in April 2009, for the wrongful death of their husband and father in October 2007. Alvin had been a resident of Maison du Monde from January through September 2007. The allegations in the petition assert that Maison du Monde failed to deliver appropriate custodial care and failed to prevent the mistreatment, abuse, and neglect of Alvin. The plaintiffs asserted a cause of action pursuant to La. R.S. 40:2010.9(A), the civil enforcement provisions of the nursing home residents Bill of Rights found in La. R.S. 40:2010.8. Diversified filed a dilatory exception of prematurity and of vagueness arguing that Maison was a qualified health care provider subject to the provisions of the Medical Malpractice Act found in La. R.S. 40:1299.1 et seq. Following a hearing in September 2008, the trial court granted Diversified’s exception of prematurity. The plaintiffs now appeal.

DISCUSSION

We conduct a de novo review of the trial court’s grant of the dilatory exception of prematurity as the issue of whether a claim sounds in medical malpractice involves a question of law. Eldridge v. Heritage Manor, L.L.C., 06-718 (La.App. 3 Cir. 11/02/06), 942 So.2d 743. Pursuant to La. R.S. 40:1299.47(B), causes |2of action sounding in medical malpractice must first be submitted to a medical review panel. Failure to do so renders a plaintiffs petition premature. Id.

Louisiana Revised Statute 40:1299.41(A)(8) defines medical malpractice as:

[A]ny unintentional tort or any breach of contract based on heath care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of the patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

“Health care” is defined in La. R.S. 40:1299.41(9) as:

[A]ny act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider, for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components.

Nursing homes are specifically listed as health care providers in La. R.S. 40:1299.41(A)(1), and there is no dispute that Maison is a qualified health care provider. In Coleman v. Deno, 01-1517, pp. 17-18 (La.2002), 813 So.2d 303, 315-316, the supreme court set forth the factors used to determine whether a health care provider’s conduct falls under the ambit of malpractice:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill,
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
(3) whether the pertinent act or omission involved the assessment of the patient’s condition,
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is [olicensed to perform,
(5) whether the injury would have occurred if the patient had not sought treatment, and
(6) whether the tort alleged was intentional.

The allegations in the plaintiffs’ petition state in part:

The Maison du Monde knew or should have known that is was chronically understaffed, and/or improperly staffed with inexperienced or improperly trained personnel and, therefore, the staff of the Maison du Monde could not meet the minimum basic life needs of a weak and vulnerable resident like Alvin A. Hernandez, Sr. The harm inflicted upon the person of Alvin A. Hernandez, Sr. while a resident of the Maison du Monde consisted of, among other things, no less than thirteen (13) separate incidents where Alvin A. Hernandez, Sr. suffered a fall ... which culminated in the incident of September 9, 2007 causing Alvin A. Hernandez, Sr. to suffer severe and ultimately fatal injuries including, but not limited to, blunt trauma to the right hemithorax, multiple rib fractures on the right, a collapsed lung, contusions to the right upper extremity, and bruising to the posterior back.
19.
That, the Maison du Monde breached this duty by failing to deliver custodial care and services that a reasonably careful person would have provided under similar circumstances by failing to prevent the mistreatment, abuse and neglect of Alvin A. Hernandez, Sr.
22.
That, the ordinary negligence of the Maison du Monde included ...:
a) in that the Maison du Monde failed to provide a sufficient number of individuals to staff its facility to ensure that Alvin A. Hernandez, Sr.’s custodial care needs could be met;
b) in that the Maison du Monde failed to provide adequate training and supervision to its employees in order to prevent the physical abuse and mistreatment foisted upon Alvin A. Hernandez, Sr.;
c) in that the Maison du Monde failed to treat Alvin A. Hernandez, Sr. | ,,with courteous [sic], respect and dignity while a resident at is [sic] facility;
d) in that the Maison du Monde failed to monitor and observe Alvin A. Hernandez, Sr. at intervals demanded by his custodial needs in order to assure his safety from falls and/or other injuries;
e) in that the Maison du Monde failed to adopt adequate guidelines, policies and procedures for the protection of its residents who were susceptible to falls and/or other injuries, and
f) in the alternative, the Maison du Monde failed to follow its own guidelines, policies and procedures for the protection of its residents who were susceptible to falls and/or other injuries[.]

Alvin’s death certificate is in the record and lists the causes of death as malnutrition, dehydration, failure to thrive, and Alzheimer’s dementia. Alvin’s records reveal that he was taking multiple medications and had been diagnosed with Alzheimer’s, dementia, hypertension, coronary artery disease, depression, hyperli-pidemia, benign prostatic hyperplasia, cerebrovascular insult, and cerebrovascu-lar accident.

The plaintiffs attempt to argue that Maison breached its duty to Hernandez by failing to provide adequate staff at the nursing home. They suggest that the staff were improperly trained and did not monitor or observe Alvin adequately. We find this phraseology does not circumvent the requirement that the claim must be first submitted to the medical review panel.

Considering the Coleman factors, we agree with the trial court that the allegations set forth in the plaintiffs’ petition fall under the ambit of care and treatment, thus requiring presentment to a medical review panel. The decedent’s serious medical conditions required the knowledge and expertise of medical professionals. Further, there is no doubt that expert medical evidence will be required to determine if there has been a breach of the standard of care. There can be no way |fito assess the fault of the nursing home without reference to Alvin’s extensive medical and pharmacological needs and the care and treatment that was rendered to him by the staff. The level of supervision and monitoring required by a patient necessarily requires an assessment of his medical condition and capabilities. It is clear from the record that Alvin was not in the nursing home merely for custodial care, but for treatment of a host of medical conditions.

This case is easily distinguished from those cited by the plaintiffs. In Lafonta v. Hotard Coaches, Inc., 07-0454 (La.App. 4 Cir. 10/10/07), 969 So.2d 686, writ denied, 07-2208 (La.1/11/08), 972 So.2d 1166, the defendant nursing home failed to comply with the mandatory evacuation of the New Orleans area in advance of Hurricane Katrina. In both Richard v. Louisiana Extended Care Centers, Inc., 02-0978 (La.1/14/03), 835 So.2d 460, and Munson v. Lakewood Quarters, L.P., 06-1428 (La.App. 1 Cir. 7/18/07), 965 So.2d 448, the cases were remanded for full evidentiary hearings because there was insufficient evidence to determine if the failure to secure a patient in a wheelchair constituted medical malpractice. Quinney v. Summit of Alexandria, 05-237 (La.App. 3 Cir. 6/1/05), 903 So.2d 1226, and Henry v. West Monroe Guest House, Inc., 39,442 (La.App. 2 Cir. 3/2/05), 895 So.2d 680, writ denied, 05-875 (La.5/13/05), 902 So.2d 1032, both involved the nursing home’s failure to keep the resident clean and free of waste/ehange diapers regularly thereby causing the residents to lose their dignity. In Wild v. NS’NG, Inc., 04-933 (La.App. 1 Cir. 12/30/04), 898 So.2d 466, the nursing home left a door unlocked and the resident walked out the door and tripped on an uneven surface. In Terry v. Red River Center Corp., 37,991 (La.App. 2 Cir. 12/10/03), 862 So.2d 1061, writ denied, 04-0094 (La.3/19/04), 869 So.2d 856, the issue revolved around the nursing home’s | ^failure to honor the last wishes of the resident when it attempted to resuscitate her despite a DNR order. Finally, Jordan v. Stonebridge, L.L.C., 03-588 (La.App. 5 Cir. 11/25/03), 862 So.2d 181, writ denied, 03-3520 (La.3/19/04), 869 So.2d 851, involved an obese resident whose orders indicated that two people were required for transfers. An orderly tried to move the resident without assistance in direct violation of the order. All of these cases are distinguishable from the facts present in this case. As Diversified points out succinctly in its brief:

Knowing that feces should be cleaned from a resident’s body, that a wheelchair should be in proper working order before being used, that water should not be allowed to stand on a floor where residents (or visitors) may traverse does not relate to treatment or professional skill or judgment. Assessing a resident (with his own unique medical picture, medications and limitations) on a continuing basis to determine what level of supervision or monitoring is required, on the other hand, absolutely requires and relates to treatment and professional skill. Furthermore, the allegations relating to improperly training the nursing home staff, improperly staffing the nursing home, and understaffing the nursing home all directly relate to the professional judgment of the nursing home in the context of the specific nursing home population and the medical and physical needs of that population.

Considering that the plaintiffs allege that Alvin’s alleged wrongful death was due to the inactions of the nursing home that he was discharged from a month prior and the multiple causes of death listed on the death certificate, it is without a doubt that extensive expert testimony will be necessary to establish if the nursing home breached the standard of care. It would otherwise be impossible to determine if the alleged understaffing is what led to Alvin’s death.

As to factor three, again, assessment of the patient’s capabilities and needs, and requirement for supervision based on his particular medical facts and limitations, is necessary to determine the responsibility of the nursing home. Moreover, the guidelines and procedures instituted by the nursing home in caring for |7patients with complicated medical needs requires the professional judgment and skill of those schooled in the area of health care. Plaintiffs argue that any lay person could determine that Alvin needed assistance to prevent falls; otherwise, he would have continued to live independently. We find this argument lacks merit and presumes that every nursing home patient is prone to falling.

It is clear that Alvin required around-the-clock medical and nursing care, which necessitated the existence of a doctor-patient relationship. He was not at the nursing home merely for custodial care. We find that issues of staffing at the nursing home and the actions or inactions of the nursing home staff in relation to Alvin’s medical needs and condition, fall squarely within the medical malpractice arena. The responsibilities of the nursing home, along with assessments of care given based on Alvin’s needs, certainly will require expert testimony. Additionally, there are no allegations that the conduct complained of was intentional. Accordingly, we affirm the trial court’s grant of the defendant’s dilatory exception of prematurity. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.


author: DECUIR, Judge.

text:
    Ryan William PRICE, et al. v. Randy J. FUERST.
    No. 09-545.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    James B. Doyle, Law Office of James B. Doyle APLC, Lake Charles, LA, for Plain-tifi/Appellant, Ryan William Price.
    Steven W. Hale, Steven W. Hale & Associates, Inc., J. Michael Veron, Veron, Bice, Palermo & Wilson, LLC, Lake Charles, LA, for Defendant/Appellee, Randy J. Fuerst.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   DECUIR, Judge.

|, Ryan Price, individually and on behalf of his two minor children, filed suit against Randy Fuerst for intentional infliction of emotional distress. The trial court maintained Fuerst’s exception of no cause of action, denied Fuerst’s motion for sanctions, and dismissed the suit. Price has appealed the judgment on the exception. Fuerst answered the appeal, alleging error in the denial of sanctions and requesting further sanctions for a frivolous appeal. For the following reasons, we affirm.

An exception of no cause of action will be maintained “only if it is clearly shown that the law affords no remedy for the grievances alleged, under the circumstances alleged, under any theory of the case.” Sanders v. Gore, 95-660, p. 10 (La.App. 3 Cir. 7/10/96), 676 So.2d 866, 872, writ denied, 96-2072 (La.11/15/96), 682 So.2d 762. In Everything on Wheels Subaru, Inc. v. Suban South, Inc., 616 So.2d 1234, 1235 (La.1993), the supreme court described the court’s task in considering an exception of no cause of action as follows: “[T]he court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.” Articulating the standard of review which governs an exception of no cause of action, the supreme court explained, “the appellate court and this Court should subject the case to de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition.” Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349. See also, J.M.Y. v. R.R., 08-805 (La.App. 3 Cir. 12/11/08), 1 So.3d 725.

In the case before us, the petition alleges certain facts which we accept as true for purposes of reviewing the exception of no cause of action. Price contends the defendant Fuerst was hired by Price’s wife during a period of marital discord while 12the couple was engaged in counseling in an effort to repair their marriage. Fuerst is an attorney and was hired by Brandy Price in his capacity as a divorce lawyer. Fuerst immediately filed suit for divorce and allegedly within a few weeks, as stated in Price’s petition, “began an adulterous and inappropriate relationship with BRANDY while he was acting as her counsel of record, and in that capacity steered her away from reconciliation with her husband, and was an agent in the destruction of this family.”

If true, the conduct described in the petition is egregious, professionally repugnant, and “ethically reprehensible,” as similar conduct was characterized in Sanders, 676 So.2d at 872. The trial court described the alleged conduct as extreme and outrageous, noting that it would make for an obvious complaint to the bar association. The 1998 case of In re Ashy, 98-0662 (La.12/1/98), 721 So.2d 859, provides a thorough discussion of the disciplinary actions that have been imposed on lawyers who enter into extramarital affairs with their clients.

Nevertheless, Louisiana law does not recognize a cause of action for intentional infliction of emotional distress based solely on allegations of an extramarital affair. The cause of action is similar to one for alienation of affection which has never been actionable in Louisiana. See Moulin v. Monteleone, 165 La. 169, 115 So. 447 (1927). Rather, the jurisprudence holds, “the mere seduction and loss of one’s spouse due to the seduction or affair cannot be the basis for the action. There must be proof that defendant 'violated some legal duty to plaintiff.” Scamardo v. Dunaway, 94-545, p. 8 (La.App.5 Cir. 2/15/95), 650 So.2d 417, 420. The law demands more than an affair, requiring the plaintiff “to assert facts establishing defendant’s specific duty to the plaintiff.” Scamardo v. Dunaway, appeal after remand, 96-1036, p. 3 (La.App. 5 Cir. 4/29/97), 694 So.2d 1041, 1042, writ denied, 97-1395 (La.9/5/97), 700 So.2d 517. In Viator v. Miller, 04-1199, pp. 9-10 (La.App. 3 Cir. 4/27/05), 900 So.2d 1135, 1142-43, this court stated:

Clearly, any damages arising from the sexual relationship between Heather and Judge Miller are not recoverable under Louisiana law. Understandably Michael experienced emotional distress in this situation, but “the mere seduction and loss of one’s spouse due to the seduction or affair cannot be the basis for the action.” Scamardo, 650 So.2d at 420 (emphasis omitted). Although Michael, in addition, attempts to rest his claim on allegations of bad faith, detrimental reliance, civil fraud and other general tort law theories, an examination of the facts alleged in the petition clearly shows the basis of his claims rests on the adulterous relationship between Judge Miller and his ex-wife. Except for the paternity allegations found in paragraphs 85 and 86 of the petition, the facts alleged in the petition are insufficient to support a claim for intentional or negligent infliction of emotional distress or any other claim based on the noted alternative theories.

(Footnotes omitted.)

Price urges this court to overturn longstanding jurisprudence against alienation of affection claims based on the fact that Fuerst’s alleged conduct arose in the course of his legal representation of Brandy in her claim, or potential claim, against Price. While this argument certainly highlights the rationale behind the ethical rules which prohibit lawyers from engaging in affairs with their clients, it does not provide a basis for a private cause action against a lawyer by a non-client ex-husband. Again, we quote from the Viator case:

We note, as well, the petition contains allegations which refer to defendant’s professional conduct as a lawyer. Although Miller may have violated the Code of Professional Responsibility that governs his conduct as a lawyer, the mere violation of the Code does not give rise to civil liability. The facts alleged in the petition are insufficient to support a claim that an attorney-client relationship ever existed between Michael and Miller. Even if we were to conclude a de facto attorney-client relationship existed between Miller and Michael’s ex-wife, the Louisiana Supreme Court stated in Penalber v. Blount, 550 So.2d 577, 578 (La.1989) “no cause of action lies in favor of a non-client under theories of malpractice and negligence because the 14 attorney owes no duty to the adversary of his client.” In cases where the courts have recognized a cause of action against an attorney in favor of a non-client or a third-party beneficiary under the broad ambit of La.Civ.Code art. 2315, they have found the attorney knowingly violated a prohibitory law or intentionally engaged in a fraudulent act. Id. ... [Allegations that Miller intentionally had a sexual relationship with Michael’s ex-wife, failed to disclose such, and later divulged it in a telephone conversation are insufficient to constitute legal fraud or a violation of any prohibitory law recognized in this state.

900 So.2d at 1143, footnote 2.

We conclude the allegations set forth in Price’s petition are insufficient to state a cause of action for intentional infliction of emotional distress. Furthermore, we also find no cause of action on behalf of the minor children of Ryan and Brandy Price, following the legal rationale set forth in Greene v. Roy, 604 So.2d 1359 (La.App. 3 Cir.), writ denied, 607 So.2d 544 (La.1992).

While we find the exception of no cause of action was appropriately maintained, we find no basis for an award of sanctions against the plaintiff or his counsel and affirm the trial court’s denial of same. In filing his petition, Price sought to have existing law overturned, and he set forth before the trial court and this court legitimate arguments and thorough research to support his claim. We do not find the petition a sanctionable pleading even though we affirm its dismissal pursuant to the defendant’s exception. Likewise, we do not view the plaintiffs appeal as frivolous and, therefore, decline to award damages on that basis.

The judgment of the trial court is affirmed. Costs of the appeal are assessed to the plaintiff.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    Wade P. RICHARD v. Daniel G. RICHARD, et al.
    No. 09-539.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Thomas K. Regan, Crowley, LA, for Defendant/Appellee, Glenn Deville, Marshall-Crowley City Court.
    Andre Doguet, Lafayette, LA, for Defendant/Appellee, Daniel G. Richard.
    Wade Paul Richard, Crowley, LA, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   THIBODEAUX, Chief Judge.

| ,The plaintiff-appellant, Wade Richard, brought an action for trespass against the defendants-appellees, Daniel Richard and Glenn Deville, alleging that the defendants caused movers to enter the property while the residents, Wade Richard and his mother, Marie Richard, were absent from the property and against the expressed wishes of the residents. The movers then unloaded furniture and personal property of Marie Richard and left it in the carport and driveway, blocking the residents’ use of these areas. The defendants’ exceptions of no cause of action and no right of action were granted by the trial court. Wade Richard appeals that judgment, and both defendants have answered the appeal, asserting an entitlement to damages for frivolous appeal.

Finding that Wade Richard stated a cause of action for which the law provides a trespass remedy to someone, we reverse the portion of the trial court’s judgment granting the exception of no cause of action. However, we find that Wade Richard does not have a right of action for trespass, and we affirm the trial court’s granting of the exception of no right of action. We decline to grant an award to the defendants for frivolous appeal.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting the defendants’ exceptions of no cause of action; and,

(2) whether the trial court erred in granting the defendants’ exceptions of no right of action.

_|¿L

FACTS AND PROCEDURAL HISTORY

The plaintiff, Wade Richard, is the son of the defendant, Daniel Richard, and Marie Richard, who is now deceased. Daniel and Marie were divorced. As part of the community property division, Marie received the exclusive use of a house on Ash Street in Crowley, and Daniel received exclusive use of a house on Lyons Point. Wade was living with his mother on Ash Street, caring for her and managing her affairs. Furniture and property belonging to Marie was to be moved from Daniel’s house to Marie’s house. Apparently, the removal and delivery of the furniture had been attempted previously without success.

Wade and Marie told the movers not to deliver Marie’s property on October 24, 2007, and not until an off-duty officer was available to facilitate the move. On October 24, 2007, while Wade and Marie were away from the Ash Street house, the movers delivered Marie’s furniture and left it outside under the carport and in the driveway, blocking the residents’ use of those areas and exposing the movables to the elements and possible theft. On October 24, 2008, Wade filed a petition for damages, alleging criminal and civil trespass against the movers, against Daniel Richard and against Glenn Deville, the Crowley City Marshal. Wade further alleged that Daniel had conspired with Glenn Deville to watch the house and have the movers deliver the furniture and moveable property while Marie and Wade were away from the property, in violation of the exclusive use order prohibiting Daniel and his agents from entering the Ash Street property without Marie’s permission.

Wade’s petition alleged damages in the form of pain, suffering, mental anguish, wages, and costs associated with immediately securing the furniture and property indoors. Following a trial in this matter, the trial court granted the | ^exceptions of no cause of action and no right of action filed by two of the defendants, Daniel Richard and Glenn Deville. Wade Richard filed this appeal, and the defendants answered the appeal, requesting damages for frivolous appeal.

III.

LAW AND DISCUSSION

Standard of Review

Both of the peremptory exceptions of no right of action and no cause of action pose a questions of law. Accordingly, we review these exceptions de novo. See Rowan v. Town of Amaudville, 02-882 (La.App. 8 Cir. 12/11/02), 832 So.2d 1185.

Exception of No Cause of Action For Civil Trespass

The Louisiana Supreme Court in Industrial Companies, Inc. v. Durbin, 02-665 (La.1/28/03), 837 So.2d 1207, articulated the function of the peremptory exception of no cause of action:

First, we focus on whether the law provides a remedy against the particular defendant in this case. Id. The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Cleco Corp. v. Johnson, 2001-0175, p. 3 (La.9/18/01), 795 So.2d 302, 304. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Fink v. Bryant, 2001-0987, p. 3 (La.11/29/01), 801 So.2d 346, 348. The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Cleco Corp., 2001-0175 at p. 3, 795 So.2d at 304; Fink, 2001-0987 at p. 4, 801 So.2d at 349. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court and this court should conduct a |4de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Cleco Corp., 2001-0175 at p. 3, 795 So.2d at 304; Fink, 2001-0987 at p. 4, 801 So.2d at 349. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Fink, 2001-0987 at p. 4, 801 So.2d at 349. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Jackson v. State ex rel. Dept. of Corrections, 2000-2882, p. 4 (La.5/15/01), 785 So.2d 803, 806.

Industrial, 837 So.2d at 1213 (emphasis added).

A close reading of the above supreme court precedent reveals dichotomous reasoning in articulating the test to be applied at the trial of an exception of no cause of action. The referenced language from Cleco provides that the test is whether the petition has stated a cause for which the law provides a remedy to anyone. The referenced language from Fink indicates that the test is whether the petition states a cause for which the law provides a remedy to a particular plaintiff. All three cases, Industrial, and its cited cases of Cleco and Fink, recite both versions of the test, and many trial courts seem to have difficulty in distinguishing which is the proper test when trying an exception of no cause of action. However, Industrial, which reversed the trial court’s decision to grant the defendant’s exception, stated that the trial court’s only concern should have been “whether the allegations in Industrial’s petition were sufficient to state a cause of action against the defendants for recovery of the funds.” Industrial, 837 So.2d at 1215.

We believe that precision is needed to resolve the problem of the dichotomous language, and we would place “for anyone” at the end of the last above-quoted phrase from Industrial, 837 So.2d at 1215. Our conclusion is buttressed by an examination of the codal article itself, La.Code Civ. P. art. 927, which lists |fiperemptory exceptions (5) and (6) respectively as “No cause of action” and “No right of action, or no interest in the plaintiff to institute the suit.” Further, Section B of Article 927 speaks of no cause of action and no right of action in the disjunctive “or,” indicating mutually exclusive alternatives. The phrase “in the plaintiff’ refers to a right of action, not a cause of action. Thus, reference to a cause of action focuses not on whether a remedy is afforded to the plaintiff in the pending action, but whether the law affords a remedy to anyone under the accepted factual allegations. In other words, the proper plaintiff is not at issue at the trial of an exception of no cause of action, but is the exact raison d’etre for the exception of no right of action. Now we turn to the cause of action for trespass.

Civil Trespass

A trespass occurs when there is an unlawful physical invasion of the property or possession of another. Gaspard v. St. Martin Parish Sewerage Dist. # 1, 569 So.2d 1083 (La.App. 3 Cir.1990). A trespasser has been defined as “one who goes upon the property of another without the other’s consent.” Pepper v. Triplet, 03-619 (La.1/21/04), 864 So.2d 181, 197 (citations omitted). Even though the work may have been done by another, the party supervising and/or directing the work and ordering the trespass is liable. See Gaspard, 569 So.2d 1083. Damages are recoverable for “unconsented to activities performed on the property of another, based on physical property damage, invasion of privacy, inconvenience, and mental and physical suffering.” Beacham v. Hardy Outdoor Advertising, Inc., 520 So.2d 1086, 1091 (La.App. 2 Cir.1987).

| (¡Article 2315 of the Civil Code provides in pertinent part that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. The tort of trespass has long been recognized by courts throughout this state as a means to correct the damage caused when an owner is unjustly deprived of the use and enjoyment of his immovable.

Britt Builders, Inc. v. Brister, 618 So.2d 899, 903 (La.App. 1 Cir.1993).

[A] defendant may be held liable for trespass even in the absence of intent— i.e. when the plaintiff offers proof that the defendant was at fault in causing the trespass pursuant to the general tort article, La. C.C. art. 2315. See M. Cres-son, Comment, “The Louisiana Trespass Action: A ‘Real’ Problem,” 56 La. L.Rev. 477 (1995), citing Phillips v. Town of Many, 538 So.2d 745 (La.App. 3d Cir.1989); Brown v. Bedsole, 447 So.2d 1177 (La.App. 3d Cir.[), writ denied, 450 So.2d 358 (La.]1984).

Terre Aux Boeufs Land Co., Inc. v. J.R. Gray Barge Co., 00-2754 (La.App. 4 Cir. 11/14/01), 803 So.2d 86, 96, writ denied, 01-3292 (La.3/8/02), 811 So.2d 887.

In his petition, Wade Richard alleges that he and his mother, Marie, told the moving company not to deliver the furniture and other movables on October 24, 2007, and not until an off-duty law enforcement officer could be present on the premises at the expected time of delivery. He further alleged that Marie was given exclusive use of the Ash Street property as part of a court-ordered division of property, in connection with Daniel and Marie’s divorce, and that Daniel and his agents were prohibited from going on the property without Marie’s consent.

Wade Richard also alleged in his petition that Daniel Richard and Glenn Deville caused the moving company to go to the Ash Street property when the residents were not present and, knowing that delivery had been refused on that date, unlawfully gave the movers authorization to enter the premises without the residents’ permission, knowledge, or consent. In several paragraphs of his petition, Wade Richard specifically alleged civil and criminal trespass. Taking these allegations to |7be true, as we are bound to do, we find that Wade Richard has stated a cause of action for civil trespass, where he alleged an unlawful physical invasion of the property or possession of another.

Exception of No Right of Action For Civil Trespass

Article 927 of our Code of Civil Procedure describes the peremptory exception of no right of action as, “no interest in the plaintiff to institute the suit.” La.Code Civ. P. art. 927(A)(6). The article serving as the basis for the exception urging the objection that the plaintiff has no right of action is La.Code Civ. P. art. 681: “Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.”

The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Industrial Companies, Inc. v. Durbin, 837 So.2d 1207. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La.11/30/94), 646 So.2d 885. Unlike the no cause of action exception, evidence is admissible to support or controvert the objection of no right of action when the grounds thereof do not appear from the petition. La.Code Civ. P. art. 931; Louisiana Shrimp Ass’n v. Wayne Estay & Wayne Estay Shrimp Co., 05-29 (La.App. 5 Cir. 5/31/05), 905 So.2d 431.

In seeking a reversal of the trial court’s judgment, Wade Richard contends that, even though he was not an owner of the Ash Street property, he was 18a possessor and a resident there with his mother. Therefore, he has a right of action in trespass. We note that Wade Richard did not assert “possessor” or “lessee” status in his petition for damages. Rather, he referred to his mother and to himself as “residents” and “occupants” of the Ash Street property. Wade’s petition did, however, allege facts establishing Marie’s right of action for trespass, due to her court-ordered exclusive use of the Ash Street property, pursuant to the division of property between Daniel and Marie. Likewise, Marie was the owner of the furniture and movable property that was left in the yard of the Ash Street property. However, Wade asserted no representative status or capacity to sue on her behalf. Wade argues on appeal that he was a “tenant/resident” of the Ash Street property and, therefore, can file a “Tresspassing [sic] type” of claim against the movers who delivered furniture without the authorization from any resident, and that he has a “legal right” to pursue such a claim against Daniel Richard, the owner of the property in title only.

The defendants, Daniel Richard and Glenn Deville, assert that under LaRue v. Crown Zellerbach Corp., 512 So.2d 862 (La.App. 1 Cir.), writ denied, 514 So.2d 1176 (La.1987), one must be an owner or legal possessor of property in order to bring an action for trespass upon that property.

Wade Richard cites Garrett v. Martin Timber Co., Inc., 891 So.2d 928 (La.App. 2 Cir.1980), writ denied, 397 So.2d 804 (La.1981), for the proposition that the remedy for trespass is available to one who is only a possessor of property, even against the owner of the property. Garrett and its progeny are inapplicable to the present set of facts for several reasons. In Garrett, two landowners lay claim to a strip of land that adjoined both of their properties. Garrett did not sue the adjoining landowner; rather, he sued the timber company which tore down a fence that Garrett’s family had built in the 1940’s, and cut timber from the disputed strip. Evidence ^indicated that Garrett’s family thought the fence was the boundary and had farmed up to the fence for almost forty years. The second circuit articulated that when an action for trespass is predicated upon possession, it is very similar to the possessory action, and the one in legal possession could bring a suit for damages against one who disturbs his possession. Accordingly, the court found that in this action for trespass, Garrett need only prove possession and did not have to prove ownership. The court applied La.Civ.Code art. 3436, which, at that time, provided as follows:

Art. 3436. Essentials of possession. To be able to acquire possession of property, two distinct things are requisite:
1. The intention of possessing as owner.
2. The corporeal possession of the thing.

Therefore, Garrett does nothing to advance Wade’s claims to a right of action because Wade cannot fulfill criteria (1) above where he had no intention of possessing the Ash Street house as an owner. The second circuit in Garrett articulated that the type of activity necessary to constitute corporeal possession of land, pursuant to criterion (2) above, differs with the nature of the property, and that actions constituting corporeal possession on one type of property may be insufficient to constitute corporeal possession on other property. Wade is not a possessor under Garrett.

Likewise, the current Civil Code articles on possession provide in pertinent part as follows:

Art. 3656. Same; parties; venue
A plaintiff in a possessory action shall be one who possesses for himself. A person entitled to the use or usufruct of immovable property, and one who owns a real right therein, possesses for himself. A predial lessee possesses for and in the name of his lessor, and not for himself.
|inArt. 3660. Same; possession
A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper.

Wade does not have standing for a trespass action under the above articles because he did not have a legal usufruct of, or a real right in, the Ash Street property. Moreover, his arguments are inconsistent where he claims on appeal to be a tenant or lessee, which is unsupported, and the lessee under article 3565 cannot be a possessor because he does not possess in his own name. See Pfister v. St. Bernard Cypress Co., Sup.1923, 155 La. 575, 99 So. 454, certiorari denied, 266 U.S. 625, 45 S.Ct. 125, 69 L.Ed. 474 (1924) (action for damages for cutting and removing timber could be maintained either by a possessor having a right to a possessory action or by an owner having a right to an action for the value of the timber cut and removed from his land); See also Patín v. Blaize, Sup.1841, 19 La. 396 (to entitle one to maintain an action for trespass on land, he should be the owner or in possession thereof, when the acts complained of were committed).

Wade has claimed to be a tenant, but has not asserted the existence of a lease, nor the identity of the lessor. Therefore, he cannot show an entitlement to the protections of La.Code Civ.P. art. 2700, where, in the second paragraph, a lessor must warrant the lessee peaceful possession against a disturbance by a person who, “with the lessor’s consent, has access to the thing.” If Daniel were the lessor, and Wade the lessee, Daniel would have had a duty to protect Wade from the disturbance caused by the movers and the Crowley Marshall. However, these are not the facts. If Wade’s mother had been the lessor, even she had no duty to him because she did not give the | n movers and the Marshall consent to access the property; and because, without the referenced consent, the lessor is not obligated to protect a lessee against a trespasser who does not claim a right in the leased thing. See Comment (d) of La.Code Civ.P. art. 2700.

Wade has not been able to show his status as a possessor, nor an owner, nor a lessee of the Ash Street property, even though evidence is permitted at the trial of an exception of no right of action. While a civil trespass is brought under La.Civ. Code art. 2315, under a duty-risk analysis, Wade has shown no duty on the part of the defendants to protect one without ownership, possessor, or lessee rights, from a furniture delivery, albeit vengeful, to the property he merely occupied. Moreover, Wade did not allege damage to the immovable property, and the movable property was his mother’s property. Accordingly, Wade Richard is not a plaintiff who belongs to the class of persons to whom the law grants the cause of action asserted in the suit, and he has no right of action under La.Code Civ.P. arts. 927 and 681.

In Washington Mut. Bank v. Monticello, 07-1018 (La.App. 3 Cir. 2/6/08), 976 So.2d 251, 256-57, writ denied, 08-530 (La.4/25/08), 978 So.2d 369, we stated:

“The existence of the duty is clearly a question of law. The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support a claim.” Nicholson v. Calcasieu Parish Police Jury, 96-314 (La.App. 3 Cir. 12/11/96), 685 So.2d 507, 511 (citations omitted).

The only law that Wade has asserted that might support a claim are the statutes on criminal trespass, La. R.S. 14:63, R.S.14:63.3 and R.S. 14:63.4. [ ^However, this is an appeal of a civil suit, and there is no evidence that the district attorney has brought or prosecuted charges of criminal trespass. In spite of the inapplicability of the criminal statutes, because their provisions contain language that could arguably support a claim for trespass by the mere occupant or custodian of a house, we will not award damages to the defendants for frivolous appeal under La.Code Civ. P. art. 2164.

IV.

CONCLUSION

Based upon the foregoing, we reverse the trial court’s granting of the exception of no cause of action, and we affirm the trial court’s granting of the exception of no right of action, dismissing Wade Richard’s suit against Daniel |1sRichard and Glenn Deville with prejudice. We decline to grant these defendants’ request for damages for frivolous appeal. Each party is to bear his own costs for this appeal.

REVERSED IN PART; AFFIRMED IN PART; SUIT DISMISSED WITH PREJUDICE.

      . “The nonjoinder of a party, peremption, res judicata, the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion.”

      . § 63. Criminal trespass

      B. No person shall enter upon immovable property owned by another without express, legal, or implied authorization.

      Historical Notes: Possession:
      Possession means "natural possession,” which is the actual corporeal detention of the thing, such as occupying a house or the cultivation of land. It implies the detention, holding or controlling of property to the exclusion of others. State v. Crappel, 181 La. 715, 160 So. 309 (1935).
      (Emphasis added.)

      . § 63.3. Entry on or remaining in places or on land after being forbidden
      A. No person shall without authority go into or upon or remain in or upon or attempt to go into or upon or remain in or upon any structure, watercraft, or any other movable, or immovable property, which belongs to another ... after having been forbidden to do so, either orally or in writing, including by means of any sign hereinafter described, by any owner, lessee, or custodian of the property or by any other authorized person. (Emphasis added.)

      . § 63.4. Aiding and abetting others to enter or remain on premises where forbidden
      A. No person shall incite, solicit, urge, encourage, exhort, instigate, or procure any other person to go into or upon or to remain in or upon any structure, watercraft, or any other movable which belongs to another, including public buildings and structures, ferries, and bridges, or any part, portion, or area thereof, knowing that such other person has been forbidden to go or remain there, either orally or in writing, including by means of any sign hereinafter described, by the owner, lessee, or custodian of the property or by any other authorized person. (Emphasis added.)