author: KEATY, Judge.

text:
    Mukesh R. ZAVERI, et ux. v. Denis Lloyd HUSERS, et al.
    16-866
    16-867
    Court of Appeal of Louisiana, Third Circuit.
    06/21/2017

      Hunter W. Lundy, Rudie R. Soileau, Jr., Lundy, Lundy, Soileau- & South, 501 Broad Street, Lake Charles, Louisiana 70601, (337) 439-0707, Counsel for Defendants/Appellees: Denis Lloyd Husers, Linda Husers

      E.R. Robinson, III, Attorney at Law, 125 West School Street, Lake Charles, Louisiana 70605, (337) 433-9535, Counsel for Defendants/Appellees: Denis Lloyd Husers, Linda Husers
    Kenneth Michael Wright, Kenneth Michael Wright, LLC, 203 West Clarence Street, Lake Charles, Louisiana 70601, (337) 439-6930, Counsel for Plaintiffs/Appellants: Mukesh R. Zaveri, Kailish M. Zaveri
    James David Cain, Jr., Loftin, Cain & LeBlanc, LLC, 113 Dr. Michael DeBakey Drive, Lake Charles, Louisiana 70601, (337) 310-4300, Counsel for Third-Party Appellee: City of Lake Charles
    Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
   KEATY, Judge.

hThe matter at issue in these consolidated appeals arose after Mukesh and Kailash Zaveri built a large retaining wall between their lot and the neighboring lot of Denis and Linda Husers in conjunction with the Zaveri’s construction of a residence on Prien Lake in Lake Charles, Louisiana. Following a bifurcated trial, judgment was rendered in favor of the Husers and against the Zaveris, Champion Custom Home Builders, LLC (Champion), and The City of Lake Charles (the City), in varying amounts. Thereafter, the Zaveris, the Hus-ers, and Champion filed Motions for Judgment Notwithstanding the Verdict (JNOV), all of which were denied. The Zaveris appealed, and the Husers answered that appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The Zaveris purchased a partially developed lot at 3608 West Prien Lake Road in October 2005. The prior owners of the lot had built a bulkhead, wharf, and boathouse on the lake, and they had brought in some dirt to create a pad for a home which they intended to build at a later date. The front of the Zaveris’ and Husers’ lots had elevations of ten feet above sea level at the road and declined to sea level at the lake at the rear of the properties. The Husers have resided in their -current house since 1994. Between then and the time the Zaveris purchased their lot in 2005, several hurricanes had struck the Lake Charles area and the Federal Emergency Management Agency (FEMA) required that all new homes be constructed at least ten feet above the base flood elevation.

The Zaveris hired a Texas architect to draw plans to build a house consisting of approximately 8,000 square feet of living area with just less than 12,000 square lafeet under the roof. The plans included the creation of a three-sided retaining wall (the wall) which grew in height as it neared the lake to contain the dirt needed to achieve a level surface upon which to build the house. The Zavaris contracted with R-Mac Engineering Company, Inc. (R-Mac), a structural engineering firm based in Texas, to design the foundation and framing of the house, wall, and driveway. Although not licensed as such, Mr. Zaveri (Zaveri) was allowed to act as his own general contractor under a provision of Louisiana law which allows an individual to serve as the builder/contractor for a house he will maintain as a personal residence.

Zaveri submitted site plans and a FEMA Elevation Certificate to the City-Planning Department and received a Certificate of Zoning and Land Use Compliance (the zoning certificate) on May 24, 2006. The zoning certificate was issued by Doug Burguires, the City’s Director of Planning and Development. By signing the zoning certificate, Zaveri certified that all construction of his residence “will be in strict compliance with all zoning codes and regulations adopted by the City.” Building Permit 06-3526 (the permit) was issued to Zaveri on May 24, 2006, and construction began soon thereafter. Throughout the construction project (the project), Zaveri consulted regularly with his close friend, Mike Adalas, a general contractor licensed in Texas with twenty-five-plus years of experience and the principal owner of Champion, a company specializing in the construction of large, custom homes.

The first stage of the project involved construction of a retaining wall which, as originally designed by R-Mac, resembled an upside down T, with “toes” on either side of the vertical wall. By the time construction began, however, Zaveri |shad altered the design to remove the toe on the Husers’ side of the wall which allowed the wall to be installed closer to the property line. Upon realizing the size and magnitude of the wall, which measured ten feet tall at its highest point near the lake, the Husers contacted the City to express their concerns that the permit was improperly issued because the project violated several of the City’s zoning ordinances. In early November 2006, the Husers and the Za-veris met with the City Attorney in an attempt to address the Husers’ complaints, to no avail. The Planning and Zoning Commission of the City of Lake Charles (the Commission) also reviewed the Husers’ complaints and determined that the Zaver-is’ permit had been properly issued. Zaveri filed a revised site plan with the City, and while Mr. Burguires issued a second zoning certificate to Zaveri on November 28, 2006, he made the following notation on the Remarks or Special Conditions section of the form: “Revised Site Plan Exceeds Min Building Setbacks.”

The Zaveris filed a Petition for Declaratory Relief (the Petition) against the Hus-ers on November 30, 2006, acknowledging that a conflict existed concerning the “appropriateness” of their construction project and requesting that the trial court render judgment “declaring the structure to be built pursuant to the plans to be not in violation of any Code provision or ordinance of the City of Lake Charles, thus allowing a reasonably prompt completion of the construction.”

On January 5, 2007, the Husers filed an Answer, Third Party Demand, and Recon-ventional Demand. In answer to the Petition, the Husers alleged that the Zaveris had committed multiple violations of City codes and ordinances, including those related to setbacks and bufferyards. The Husers submitted that the Zaveris would suffer no hardship and that the need for a retaining wall would be eliminated if the Zaveris minimized the size of their planned front yard from “over 134 feet” 14to “closer to the 30 foot minimum.” The Husers’ Third Party Demand named the City and requested a declaratory judgment stating that the Zavaris’ permit application sought approval for construction that violated zoning ordinances and thus the permit was violative of zoning ordinances. The Husers sought permanent prohibitory injunctive relief enjoining the City from violating its zoning ordinances “by refusing to withdraw, cancel or revoke” the permit and by “failing to order Zaveris to remove all improvements erected ... in violation of the Zoning Ordinances.” The Husers sought damages against the City for the costs to mitigate their losses, costs to monitor the retaining wall for potential failure, the stigma and loss of value to their property, the loss of a tree, loss of enjoyment of life and property, and past and future mental anguish. Finally, the Husers’ Re-conventional Demand against the Zavaris sought a declaratory judgment stating that their building permit was improperly issued by the City because the construction and developments made and/or sought to be made on the property were violative of several zoning ordinances. Due to the Zaveris’ actions, the Husers sought damages against them identical to those they sought from the City.

Later, in March 2007, the Husers filed a Petition for Certiorari and Review (the Husers Petition) naming as defendants the City, the Commission, and the Zaveris, requesting that the trial court overturn the Commission’s denial of the Husers’ appeal of the City’s decision to issue a zoning certificate and á building permit to the Zaveris. In an Order dated April 25, 2007, the Petitions filed by the Zaveris and the Husers were consolidated by the trial court.

| jn November 2007, the Husers added Champion as an additional third party defendant. In a supplemental reconventional demand filed in May 2008, the Husers claimed that the Zaveris’ construction violated La.Civ.Code art. 667, The Zaveris, the City, and Champion were formally put on notice in a pleading filed by the Husers in October 2014 that the wall was failing, that they were being '“forced to mitigate their damages,” and that they were seék-ing damages for “loss of value, psychological injury, and stigma damages to [their] property”.

The matter proceeded to trial on September 28, 2015, and after hearing ten days of testimony, the jury returned a verdict finding that the wall was structurally unsound and that both the Zaveris and Champion committed fault that was ’a legal cause of the wall being structurally unsound. The jury additionally found that the Zaveri project was in violation of the zoning ordinance and'that such violation was a legal cause of damages to the Husers, Conversely, the jury found no fault on the part of the Husers in failing to mitigate their damages. The jury apportioned fault amongst the defendants as follows: 1) 93% to the Zaveris, 2) 5% to Champion, and 3) 2% to the City. In addition, the jury determined that the following amounts of money would compensate the Husers for their losses:

Loss of Use and Enjoyment of Property $ -0-
Loss of Value of Property/Stigma Damages $ 125,000.00
8,200.00 Cost of any Past Repair and Remedial Work
Cost of any Future Repair and Remedial Work ' $ 400,000.00
Past Loss of Trees, Plants and Other Landscaping -0-
Future Loss of Trees, Plants and Other Landscaping $ 15,000.00
Mental Anguish, Anxiety, Inconvenience And Discomfort -0-

IfiThe trial court signed a Judgment on April 29, 2016, which incorporated the jury verdict. With regard to the administrative appeal filed by the Husers alleging that the Commission erred in not overturning the City’s decision to issue a zoning certificate and a building permit to the Zaveris, the trial court entered judgment in favor of the Husers and ¿gainst the Zaveris, Champion, and the City. Judgment was rendered in favor of the Husers and against each defendant in dollar amounts corresponding to the damages each owed according tó the percentage of fault assigned to eách by the jury. The defendants were also cast with court costs and expert fees totaling $25,198.41 to be paid in accordance with the jury’s fault apportionment. Motions for JNOV were filed by the Za-veris, the Husers, and Champion, all of which were denied following a hearing by Order dated August 12, 2016. Thereafter, the Zaveris filed an appeal, which the Hus-ers answered.

ASSIGNMENTS OF ERROR

In their appeal, the Zaveris assert that the trial court committed legal error: 1) in allowing the Husers any award of damages based upon the evidence presented; 2) in denying their motion for JNOV addressing the award of stigma damages and in awarding special damages in excess of the evidence offered in ’support of those damages; 3) in its award of expert fees and costs; and 4) in granting the’Husers’ administrative appeal of the decision of the Commission.

|7The Husers’ answer to appeal seeks to have this court award damages in their favor for the loss of use and enjoyment of their property and for the mental anguish, anxiety, inconvenience, and discomfort that they allegedly suffered, thereby reversing the trial court’s denial of their motion for JNOV. They also request that this court order the Zaveris to pay the costs incurred in both courts.

DISCUSSION

. The Louisiana Supreme Court set out the general appellate standard of review in Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989) (some citations omitted):

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

The supreme court later explained the concept of damages in Wainwright v. Fontenot, 00-492, pp. 5-6 (La. 10/17/00), 774 So.2d 70, 74, as follows:

The term “damages” refers to “pecuniary compensation, recompense, or satisfaction for an injury sustained.” Fogle v. Feazel, 201 La. 899, 10 So.2d 695, 698 (1942). The most common type of damages in the delictual context is compensatory damages, which encompasses those damages “designed to place the plaintiff in the position in which he would have been if the tort had not been committed.” Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 7-1 (Michie 1996) (footnotes omitted).
Compensatory damages are further divided into the broad categories of special damages and general damages. “Special damages are those which either must be specially pled or have a | ¿ready market value,’ i.e., the amount of the damages supposedly can be determined with relative certainty.” Id. § 7-2 (footnotes omitted). Included under the heading of special damages are the plaintiffs medical expenses incurred as a result of the tort. 1 Damages in Tort Actions § 3.02[2][c][i] (Matthew Bender 2000). On the other hand, “[gjeneral damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. These include pain and suffering!).]” Maraist & Galli-gan, supra, § 7-2.

Louisiana Civil Code Article 2324.1 directs that a jury is given “much discretion” in assessing damages.

I. The Zaveris’ Appeal

A. Damages

In their first assigned error, the Zaveris contend that the trial court committed legal error in allowing the jury to make any award of damages to the Husers because such award was not supported by the evidence. They insist that the Husers neither proved that the wall had failed or will fail in the future nor that the Zaveris knew or should have known that the wall would cause damages to the Husers. Pointing to the trial testimony of Charles Norman, the Husers’ expert in civil and structural engineering, the Zaveris submit that, even under the best case scenario, the evidence shows that the wall has moved no more than one-quarter of an inch in the ten years since it was built.

As a preliminary matter, the Husers challenge the assumption made in the Za-veris’ appellant brief that this case is “different from a regular tort case” such that they can only be found hable under La.Civ. Code arts. 667-68. The Husers argue that Zaveri subjected himself to additional liability in choosing to act as his own general contractor to, in his words, save the “extra 20%” that it would cost to hire a licensed general contractor. As to the merits of this alleged error, the Husers counter that they did, indeed, produce compelling evidence showing that the wall |nhas failed and will continue to fail. They argue that the Zaveris ignored the totality of Mr. Norman’s opinion, which is that the wall is “cracked and it has bowed and it’s tilted and it’s failing and it will continue to fail, and we have a long time to go between now and the life of this home and I think it has to be remediated.” Next, they claim that the Zaveris overlook the testimony of Ralph Lewing, a licensed general contractor whom the trial court accepted in the field of construction, who testified that, after having visited the Husers’ property, “he called Charles Norman and told him they got a big problem over there.” Mr. Lewing explained at trial that “as I moved along the wall I could see some deterioration, I could see cracks in the wall, I could see where water was leaching through the wall and you can see rust stains, which is never a good sign,” and which led him to believe that there was “a problem that’s deeper than just the surface.” The Husers refer this court to Mr. Lewing’s impression that the wall concerned him not only as a general contractor, but also in terms of it presenting “a life safety issue” that could “endanger and impede people’s lives.” Finally, the Husers point to the testimony of Rod McCasland, the owner of R-Mac, who on cross-examination in response to being shown a photograph marked as Husers Exhibit 20 that depicted the wall’s stem and footing as seen from the Husers’ property, stated, “It gives me pause. And very frankly, if it were my wall, I would not be very happy.”

We agree with the Husers’ argument that the Zaveris were subject to liability beyond that imposed by La.Civ.Code arts. 667-68. At the close of the presentation of evidence, the trial court instructed the jury on the law that applied to this case. The jury was first told that this was a tort case and that the Husers claimed they suffered damages to themselves and/or their property, that the defendants were at fault in causing those damages, and that they should be awarded money to | ^compensate them for their damages. The trial court explained that the Husers accused the Za-veris of acting negligently because their conduct fell below “the degree of care that we might reasonably expect from an ordinarily prudent person under the same or similar circumstances.” The jury was told that the Zaveris could be hable to the Husers under: 1) La.Civ.Code art. 2322 regarding damages owed by the owner of a building caused by its ruin; 2) La.Civ.Code arts. 667-69 regarding “the corresponding rights and obligations of neighboring property owners; and 3) La.Civ..Code art. 670 regarding damages owed “when a landowner constructs in good faith a building that encroaches on an adjacent estate,” In addition, the jury was instructed that “[a] contractor owes third parties a duty to exercise reasonable care.” Twice, the trial court read La.Civ.Code art. 2315(A) to the jury, which provides that “[ejvery act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

After having reviewed the evidence presented, we cannot say that the jury manifestly erred or was clearly wrong in finding that the wall was structurally unsound due, in major part, to the fault of the Zaveris such that they owed damages to the Husers. Moreover, Mr. Norman testified that in order to remediate the effects of the wall’s current failure and its potential for future catastrophic failure, a buttress wall would have to be constructed, which in September 2014, would have cost $340,040.00 but would now cost more due to increased prices of, among other things, cement and labor. Mr, Norman also estimated that the Husers would have to vacate their home for one to two months during the remediation process. The Za-veris’ first assigned error lacks merit.

I11& JNOV/Stifjma Damages

The Zaveris next contend that the trial court erred in denying their motion for JNOV regarding the jury’s award of stigma damages and special damages that exceeded the evidence offered by the Husers in support of those damages. They submit that because the Husers judicially confessed at trial that stigma damages were special damages, they had the burden of proving to a degree of certainty the amount of stigma damages owed to them. In that regard, the Zaveris argue that the Husers failed to offer such proof. They submit that the Husers’ expert real estate appraiser, Rodolfo Aguilar, testified that while it was possible to calculate the value of stigma damages, or diminished value, and while he was of the opinion that the Husers did incur some stigma damages, he was not asked to calculate any such damages to their home. They also submit' that Gary Alvarez, who was also qualified as an expert real estate appraiser, testified that stigma damages are quantifiable but it takes much effort to measure such damages. The Zaveris further note that while Mr. Alvarez did appraise the Husers’ property, he was not asked to determine the amount of stigma damages suffered by the Husers in this case. Because the Husers failed to provide any specific testimony to support their claim for stigma damages, the Zaveris ask this court to strike the entire $125,000.00 jury award for stigma damages. Additionally, in the event this court chooses to affirm the jury’s award for the cost of future repairs, the Zaveris submit that there is no evidentiary support for an award in excess of the $340,040.00 that Mr. Norman estimated as the total cost of the remedial plan that he recommended to the Husers.

The Husers counter that the $125,000.00 awarded to them by the jury was not limited to stigma damages but also included any loss of property value that they suffered. They submit that the competing experts who appraised their | ^property all agreed that the issues presented by the wall would have to be disclosed to any potential buyer of their home. .They submit that their claim for stigma damages differs greatly from the typical claim for such damages in that the adverse impact attached to their property by the, wall will remain indefinitely and cannot be removed. The Husers further submit that because they offered specific evidence of the appraised values of their home and of their land absent any improvements, the jury had a concrete basis or range of values from which to fix this element of damages. ■ Finally, they claim that the amount awarded them for. the loss of their property value is reasonable and adequately supported by the evidence.

In Joseph v. Broussard Rice Mill, Inc., 00-628, pp. 4-5 (La. 10/30/00), 772 So.2d 94, 99, the Louisiana Supreme Court stated:

[Louisiana Code of Civil Procedure Article] 1811 controls the use of JNOV. Although the article does not specify the grounds on which a trial judge may grant a JNOV, in Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270 (La.1986), we set forth the criteria used in determining when a JNOV is proper. As enunciated in Scott, a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons 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 persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Scott, 496 So.2d at 274. In making this determination, the trial 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. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La. 1991). This rigorous standard is based upon the principle that “[w]hen there is a jury, the jury is the trier of fact.” Scott, 496 So.2d at 273; Jinks v. Wright, 520 So.2d 792, 794 (La. App. 3 Cir.1987).

The Joseph court then discussed the appellate standard of review relative to JNOVs:

11sIn reviewing a JNOV, the appellate court must first determine if the trial judge erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.

Id. “The manifest error standard of review applies to the grant and/or denial of a motion for JNOV on the issue of damages as well as on the issue of liability.” Darbone v. State, 01-1196, p. 12 (La.App. 3 Cir. 2/6/02), 815 So.2d 943, 952, writ denied, 02-0732 (La. 5/31/02), 817 So.2d 94.

In denying the motions for JNOV, the trial court stated (alterations ours):

[L]et me just mention the standard for a moment as to all of these. ... [I]n order for me to change any of these, I have to show that no reasonable jury could have come up with that figure; and that’s the nutshell version of what the standard is. And I find that to be a very high standard.
Now, look, I have seen the Court of Appeal in the past make—increase awards or decrease awards or put awards there that weren’t there before. ... So, I think the Court of Appeal probably would be in a better position having the entire transcript,' as well as their vast knowledge of the appropriate awards given in certain cases across the state, especially across the Third Circuit and, you know, what reasonable minimum and maximum awards are for certain things. ...
... [Sjince the Court of Appeal is going to be looking at this and they have the same standard as I have[,] I’m going to deny the motion for JNOV across the board on all three because ... I’m not allowed to substitute what I think for that of the jury.

In this case, the jury heard competing evidence as to whether the Husers suffered any loss of property value and/or stigma damages as a result of the structurally unsound wall constructed by the Za-veris. The jury was also presented with several appraisals regarding the value of the Husers’ home. In a report dated | uFebruary 9, 2015, Mr. Aguilar appraised the Husers’ home at $603,000.00; however, he noted that such value did not take into consideration the Zaveri house and wall. Mr. Aguilar noted that a willing buyer would subtract the $400,000.00 remediation cost from the price she would otherwise pay to purchase the Husers’ home. Mr. Alvarez also appraised the Husers’ home on behalf of the Zaveris. He testified that the land itself had a value of $324,000.00, and that the entire property with improvements had a value of $605,000.00. For purposes of his appraisal, Mr. Alvarez made the assumption that the Zaveris’ wall was properly constructed and, thus, had no adverse impact on the potential value of the Husers’ property. Finally, because the jury determined that the wall is structurally unsound, the unanimous opinion of the appraisers who testified stated the Husers’ property value will be negatively impacted and the fact of the wall’s lack of structural integrity will have to be disclosed to any potential buyer.

Taking into consideration the totality of the evidence offered in support of and against this element of damages claimed by the Husers, we cannot say that a reasonable juror could not have determined that the Husers proved their entitlement to $125,000.00 in damages for the stigma and lost property value suffered at the hands of the Zaveris. Accordingly, we cannot say that the trial court committed manifest error in denying the Zaveris’ motion for JNOV. The Zaveris’ second assigned error is meritless.

C. Expert Fees and Costs

Several weeks after the jury verdict was rendered in their favor, the Husers filed a Motion to Assess Costs and Fix Expert Fees (motion for costs), which was accompanied by bills and/or invoices detailing the amounts of costs and fees which they paid in conjunction with the presentation of their ease. That motion was | ^opposed by Champion, the City, and the Zaveris. Following a hearing in January 2016, at which it heard arguments from counsel representing the Husers and all of the defendants cast in judgment, the trial court took the matter under advisement. For oral reasons dictated in open court on February 26, 2016, and reduced to writing in the April 29, 2016 judgment, the Husers were awarded $25,198.41 in total court costs, according to the following breakdown:

a. FedEx/Kinkos $ 203.68
b. Doug Douget Legal Technology $ 105.00
c. Elite Litigation Services,LLC $ 304.43
d. Rodolfo J. Aguilar $ 16,500.00
e. James Knapp $ 1,550.00
f. Ralph Lewing $ 930.00
g. Charles Norman $ 5,605.30

In their third assigned error, the Zaver-is complain that the trial court abused its discretion in its award of costs and fees to the Husers with the exception of the $105.00 awarded to them for the services provided by Doug Douget Legal Technology. The Husers counter that information provided to the trial court and the jury in this case was vital to their understanding of the complexities related to the city zoning ordinances and the process of building permitting, the structural deficiencies in the wall, and the diminished value of the property caused by the faulty wall. Moreover, the Husers submit that all of the amounts awarded to them as court costs were reasonable and well within the great discretion afforded to the trial court.

Louisiana Code of Civil Procedure Article 1920 provides as follows:

|1fiUnless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
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.

With regard to the compensation of expert witnesses, La.R.S. 13:3666(A) provides:

Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or profession examination, and to state the results thereof, shall receive additional compensations, to be fixed by the court, with reference to the value of time employed and the degree of learning, or skill required.

“The trial court, in taxing court costs, is given great discretion and may assess those costs in any manner it deems equitable. La.Code Civ.P. art. 1920. The standard of reviewing assessment of court costs is abuse of discretion.” Bentley v. Fanguy, 09-822, 09-1509, p. 10 (La.App. 3 Cir. 10/6/10), 48 So.3d 381, 389, writ denied, 10-2854 (La. 2/25/11), 58 So.3d 457.

In McKoin v. Harper, 37,984, pp. 3-4 (La.App. 2 Cir. 12/10/03), 862 So.2d 410, 412-13 (citations omitted), the second circuit directed that:

Witnesses called to testify as expert witnesses shall be compensated for their services, with the amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. An expert witness is entitled to reasonable compensation for his court appearance and for his preparatory work. The trial judge is not required to set an expert fee at the amount charged by the expert witness and has great discretion in awarding and fixing costs and expert fees. However, a trial court’s assessment of costs can be reversed by an appellate court upon a showing of abuse of discretion.
Factors to be considered by the trial judge in setting an expert witness fee include time spent testifying, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of the work performed, and the knowledge, attainments and skill of the expert. Additional considerations include helpfulness of.the expert’s report and testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases.

117In this matter, the Husers were awarded the full amounts sought with regard to the bills they incurred from Fed Ex/Kinkos, Doug Douget Legal Technology, and Elite Litigation Services, LLC. The trial court awarded the Husers $16,500.00 of the $22,300.00, or 76% of the amount they sought, in conjunction with the services provided by Mr. Aguilar, their expert appraiser. After cutting the fee charged by expert land surveyor Mr. Knapp by 25%, the Husers were awarded $1,500.00 for his services. The trial court discounted the $1,550.00 fee sought by the Husers regarding Mr. Lewing, their expert general contractor, to a total of $930.00. Finally, the Husers were awarded $5,605.30 for the services rendered by Mr. Norman, their expert in the fields of civil and structural engineering.

After review, we find no abuse of discretion in any of the fees/costs assessed against the defendants in this matter. The parties filed memorandums in support of and against the Husers’ motion for costs in advance of the January 2016 hearing, they were allowed to present oral arguments at that hearing, and, although none of the parties took advantage of it, the parties were also given over a week to submit additional information to the trial court after it took the matter under advisement. It is clearly evident from the February 26, 2016 transcript that the trial court was aware of the law regarding the assessment of expert fees and costs and that it gave serious consideration to the amounts that should be awarded given the complicated issues presented and the positive outcome that the Husers obtained in this case. Thus, there is no merit to the Zaveris’ third assignment of error.

I). Administrative Appeal of the Zoning Commission

In their fourth assignment of error, the Zaveris contend that the trial court erred in granting the Husers’ administrative appeal of the Commission’s decision hato deny their appeal of the City’s issuance of a zoning certificate and a building permit to the Zaveris. In their appellate brief, the Zaveris note that the trial court failed to provide written reasons for judgment despite their March 11, 2016 request that it do so. Citing City of Baton Rouge/Parish of East Baton Rouge v. Myers, 13-2011, 13-2036 (La. 5/7/14), 145 So.3d 320, the Zaveris then conclude that the trial court’s grant of the administrative appeal should be reversed because it failed to offer any written or oral reasons in support of its decision.

The Husers counter that this issue is not properly before our court because their administrative appeal targeted- only the City and because their claims against the City were resolved following the jury’s verdict and the trial court’s resolution of all post-trial motions, The Husers further contend that their claims against the Za-veris and the jury’s verdict concerning those claims are not dependent upon the permitting issue. Accordingly, they submit that any and all issues . related to their administrative appeal are moot and -that the Zaveris have no standing to challenge those issues on appeal.

The Husers’ administrative appeal of the Commission’s decision to issue a building permit to the Zaveris'was'not submitted to the jury but was' instead decided by the trial court at a February 26, 2016 hearing. According to the transcript of that hearing, the trial court stated that it had previously discussed the administrative appeal during a July 30, 2013 hearing wherein it denied a motion for summary judgment filed by the City. Referring to that earlier hearing, the trial court noted; •

I set forth my reasons and I went through the various definitions and requirements that are set forth in the zoning -ordinance with regard to setbacks, structures, accessory structures, etcetera, that were involved in this case and that would have applied to the permit issue to the Zaveris and whether the Zaveries [sic] should have sought a vari-ancejj^as opposed to—in order to get permission to do what they did as opposed to the City just outright giving them a'permit.
So looking back at my previous ruling[,] I’m not going to go through everything that I said ....

The trial court then issued the following oral ruling:

I do find that the City—that the issuance of the—that the Zaveri home does violate the zoning ordinance of the City of Lake Charles, that the planning director did not have the authority to issue the certificate of zoning compliance and-that this-matter should have been put forth - as á variance request, and there should have been a public hearing to allow the Husers to property [sic] object and that didn’t happen. So I do find that the City violated-the -ordinance and should not have issued the permit.

In Myers, the supreme court stated that “[i]t is .only when an actioii of a zoning commission is found on judicial review to be palpably unreasonable, arbitrary, an abuse of discretion, or an unreasonable exercise of police power that such action will be disturbed.” Id. at 327-28. Despite the fact that the trial court directly referred to the July 30, 2013 hearing wherein it gave its ‘ rationale for granting the Husers’ administrative appeal when it made its February 26, 2016 ruling, the transcript from the July 30, 2013 hearing does not appear in the appeal record. The Zaveris have not alleged that they were unable to secure’a copy' of the July 30, 2013 transcript. ‘ We, therefore, conclude that the trial court was under no obligation to provide additional reasons when reasons had previously been stated on the record. Moreover, we hold that because the' jury determined that the Zaveri project violated the zoning ordinance, that such violation caused damages to'-the Husers, and that the City was 2% at fault for causing the Husers’ damages, the trial court’s ruling on the administrative ruling Is moot and need not be addressed in this appeal. Thus, there is no merit to the Zaveris final assigned error. ■

12qH. The Husers’ Answer to Appeal

In their answer to the Zaveris’ appeal, the Husers assert that the jury erred as a matter of law in failing to award them any amounts for “Loss of Use and Enjoyment of Property” and for “Mental Anguish, Anxiety, Inconvenience and Discomfort,” both of which they categorize as general damages. The Husers further contend that the trial court erred in denying their motion for JNOV regarding those items of damages. The Husers submit that they proved that the Zaveris’ conduct deprived them of the sense of peace that all citizens should be able to experience while at their home. As a result, they request that this court award them $50,000.00 each for loss of use and enjoyment of their property and $75,000.00 each for anxiety, inconvenience, and mental anguish.

Mr. Husers explained that the wall began leaking at least by 2008 and that the water that seeps from under the wall keeps that side of his yard constantly wet. He testified that during the construction of the wall, they lost a fence and some plants that were on the property line between their home and the Zaveris’ home. Mr. Husers stated that in order to hide the wall and give them some privacy, they had some bamboo planted on their side of the wall. Out of concern for his grandchildren’s safety, Mr. Husers stated that he moved their swing set to the opposite side of their backyard. He added that he and his wife plan to remain at their home and raise their grandchildren there. Finally, Mr. Husers stated although he originally sought to force the Zaveris to remove their home, he abandoned that plan because he could not afford the bond necessary for the issuance of an injunction.

I at Mrs. Husers testified that after the wall went up, the azalea and jasmine plants along their side of the wall were reduced to twigs. She explained that she has experienced almost constant stress since the project began and that she still experiences sleepless nights and disbelief when she sees the enormity of the Zaveris’ home’s height compared to her property. Mrs. Husers further testified that she and her husband had endured multiple legal proceedings since the Zaveris bought the property next door to them and that the ordeal would not end at the conclusion of this trial.

Mr. and Mrs. Husers point out that they both testified to having suffered fear, anxiety, and inconvenience during the construction of the wall and since its completion. Finally, they both also stated that, regardless of the outcome of this litigation, they feel they have no choice but to complete the remediation work suggested by Mr. Norman.

The Zaveris counter that neither Mr. nor Mrs. Husers sought any psychological treatment for depression or any emotional injury caused by the project and that Mrs. Husers testified that the project did not deprive her from using her home, garage, or boat house. The jury heard the testimony of Mr. and Mrs. Huser and had the discretion to award additional damages for mental anguish, but chose not to do so. Such an award is largely within the much discretion accorded to the jury.

In Louisiana, an award for mental anguish resulting from property damage is permissible in limited situations: (1) when property is damaged by an intentional or illegal act; (2) when property is damaged by acts for which the tortfea-sor will be strictly or absolutely liable; (3) when property is damaged by acts constituting a continuing nuisance; or (4) when property is damaged when the owner is either present or nearby and suffered a psychic trauma as a direct result.

Holzenthal v. Sewerage & Water Bd. of New Orleans, 06-796, p. 39 (La.App. 4 Cir. 1/10/07), 950 So.2d 55, 79, writ denied, 07-294 (La. 3/30/07), 953 So.2d 71. “[T]he ' mental anguish must be a real mental injury. The usual worry over consequences of property damage will not justify an award for mental anguish damages.” Moss v. Town of Rayville, 50,189, p. 4 (La.App. 2 Cir. 11/18/15), 181 So.3d 809, 813. Nevertheless, “[tjhere is no requirement that medical or psychiatric treatment be sought for mental anguish or emotional distress to occur.” Sierra v. Am. Alt. Ins. Corp., 13-1808, p. 7 (La.App. 1 Cir. 6/18/14), 147 So.3d 1125, 1130.

In Wainwright, 774 So.2d at 74, upon consideration of the res nova situation of where “a jury has determined that the defendant is both legally at fault for the plaintiffs injuries and liable to him for his medical expenses incurred, yet has declined to make any award at all for general damages, ie., pain and suffering,” the Louisiana Supreme Court stated:

[A] jury, in the exercise of its discretion as factfinder, can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compensable pain and suffering as a result of defendant’s fault. It may often be the case that such a verdict may not withstand review under the abuse of discretion standard. However, it would be inconsistent with the great deference afforded the factfinder by this court and our jurisprudence to state that, as a matter of law, such a verdict must always be erroneous. Rather, a reviewing court faced with a verdict such as the one before us must ask whether the jury’s determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion. Only after the reviewing court determines that the factfinder has abused its much discretion can that court conduct a de novo review of the record.

Id. at 76.

12.gln considering the Husers’ motion for JNOV, the trial court remarked:

[Tjhere was testimony with regard to the loss of their enjoyment of their property; but, as Mr. Wright said he asked, hey, were you able to use this—this is loss of use and enjoyment of the property. It’s not “use or enjoyment.” It says “use and enjoyment.” ... Mr. Wright pointed out that they [ ] didn’t lose use of the property necessarily; but it was clearly shown that they lost enjoyment of the property. So, I don’ know. I’m not sure how that is actually supposed to be looked at; and I haven’t been provided with anything to help guide me on that. The only other issue is the mental anguish, anxiety inconvenience, and discomfort. ... I don’t think the law requires a mental health professional to come in and testify that they suffered mental anguish and anxiety, inconvenience.

After articulating the grounds upon which a JNOV should be granted, the trial court noted that it found Mr. and Mrs. Husers to be credible witnesses who provided clear testimony that they lost enjoyment of their property as a result of the Zaveri project. It also expressed its surprise at the jury’s failure to award the Husers any general damages given the items and amounts of special damages awarded to them. On the other hand, the trial judge recognized that he was not in the jury deliberation room and that the jury “may have made some good points” as to why they failed to award the Husers any damages for mental anguish, anxiety, inconvenience, and discomfort. Ultimately, the trial court denied the Husers’ motion for JNOV and refused to reverse the jury’s finding that they suffered no general damages.

The trial court applied the proper standard when considering the motions for JNOV filed in this case. Given the great discretion afforded a jury in assessing damages, coupled with the prohibition that we refrain from reweighing the evidence or making credibility determinations, we find no manifest error in the trial court’s denial of the Husers’ motion for JNOV.

J^DECREE

For the forgoing reasons, the April 29, 2016 judgment of the trial court in favor of Denis and Linda Husers against Mukesh and Kailash Zaveri, Champion Custom Home Builders, LLC, and The City of Lake Charles (the City) is affirmed in all respects. The August 12, 2016 order denying the Motions for Judgment Notwithstanding the Verdict filed by Mukesh and Kailash Zaveri and by Denis and Linda Husers is also affirmed. The answer to appeal filed by Denis and Linda Husers is denied. All costs of this appeal are assessed against Mukesh and Kailash Zaveri.

AFFIRMED.

      . The following relevant facts are generally uncontested for purposes of this appeal.

      . See La.R.S. 37:2170.

      '. ' The Husers also' 'claimed ’entitlement to per- ' manent mandatory injunctive relief enjoining the Zavaris from "continuing or completing, [all] construction and development” on their property that was in violation of the zoning ordinances and requiring all such construe*tion previously completed to be removed. At trial, counsel for the Husers stated that-they were no longer seeking removal of any part of the Zavari construction.

      ; Louisiana Civil Code Article 667 provides,in pertinent part, that while a landowner “may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may-be the cause of any damage to him.”

      . Despite having dismissed the Husers’ invasion of privacy claims before trial, the trial court allowed this testimony as it was relevant to the Husers’ general damages claim.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    Belva WEBB and Faith Webb v. Joseph P. MORELLA, Chief Patrick Lasalle, Dr. Melvin G. Bourgeois, Bourgeois Medical Clinic, LLC of Morgan City, Dr. Robert M. Bourgeois, Dr. John Doe, Morgan City Police Department, Officer John Doe of the Morgan City Police Department, and ABC Insurance
    2016 CA 1153
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 21, 2017

      Timothy T. Yazbeck, Gretna, Louisiana, Counsel for Plaintiffs/Appellants, Belva Webb and Faith Webb
    James L. Pate, Sara R. Buggs, Lafayette, Louisiana, Counsel for Defendants/Appellees, Joseph P. Morelia, Patrick LaSalle and the Patterson Police Department
    Harvey J. Godofsky, Metairie, Louisiana, Counsel for Defendants/Appellees, Bourgeois Medical Clinic, Robert Bourgeois, M.D., and Melvin Bourgeois, M.D.
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, j.

Lin this appeal, the plaintiffs contest a judgment that sustained the defendants’ peremptory exception raising the objection of res judicata and dismissed their suit with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 17, 2012, the St. Mary Parish School Board requested that Belva Webb, a St. Mary Parish School District crossing guard, submit to a drug screen test, after being contacted by parents that he appeared “to be unstable while crossing children in the safety zone.” On February 23, 2012, Mr. Webb was notified by the school board that the test results showed that Mr. Webb’s prescribed medication was “safety sensitive” and that he should not be performing work duties at that time. Based on this information and concerns, Mr. Webb was instructed “not to return to work until further notice effective immediately.” An amended letter on February 28, 2012, provided that Mr. Webb was not to return to work until he had written notification from his physician releasing him to perform his crossing guard duties.

Thereafter, on April 16, 2012, Mr. Webb and his wife, Faith Webb, filed suit in federal court asserting violations of their constitutional rights as well as various state law claims. The plaintiffs alleged that the defendants, Joseph P. Morelia, the Patterson Chief of Police Patrick LaSalle, the Patterson Police Department (the Morelia defendants); the St. Mary Parish School District School Board, Kenneth Lockett and Principal Niki Fryou; the Bourgeois Medical Clinic, LLC, Dr. Melvin Bourgeois, Dr. Robert Bourgeois, and Dr. John Doe (the Bourgeois defendants); and the Morgan City Police Department and Officer John Doe, all conspired to have Mr. Webb fired by the School District. Specifically, the plaintiffs' alleged that at the personal insistence of Police Chief LaSalle, the St. Mary Parish School Board instructed Mr. Webb to go to the Bourgeois Medical Clinic in Morgan City to be drug tested and not return to work until the school board had the results. The plaintiffs further asserted that Mr. Webb anticipated a fabricated drug screening and arranged for an independent drug test before and after the drug test at the Bourgeois Medical Clinic. According to the plaintiffs, the results of the independent drug tests were negative for any drugs. The plaintiffs maintained that |athe fabricated drug tests at the Bourgeois Medical Clinic resulted in Mr. Webb losing his job, being charged with crimes, being discredited, and otherwise being humiliated with his family in the church and local community.

In response to the plaintiffs’ federal suit, each of the defendants filed a motion to dismiss. In lengthy reasons, the federal district court determined that the plaintiffs’ complaint failed to state a plausible claim for relief under 42 U.S.C. §§ 1983, 1985 and 1986, and the district court dismissed the plaintiffs’ federal law claims with prejudice. Additionally, the court declined to assert supplemental jurisdiction over the plaintiffs’ remaining state law claims and dismissed those claims without prejudice. On July 24, 2013, the judgment of dismissal was affirmed by the United States Court of Appeals for the Fifth Circuit and is a final judgment.

Thereafter, on July 23, 2014, the plaintiffs filed a petition in the Sixteenth Judicial District Court in St. Mary Parish against the same parties, setting forth the same statement of facts, and alleging violations of the federal constitution and the same state law claims raised previously in the federal suit, including violations of the Louisiana constitution, criminal law, and tort law. In response, the Morelia defendants and the Bourgeois defendants (the defendants) each filed peremptory exceptions raising the objection of res judicata. After a hearing, the trial court sustained the exceptions, dismissing the plaintiffs’ claims against the defendants. The trial court signed a judgment on January 28, 2016, and the plaintiffs appealed, asserting that the trial court erred in finding their state law claims barred by res judicata.

DISCUSSION

When a state court is required to determine the preclusive effects of a judgment rendered by a federal court exercising federal question jurisdiction, it is the federal law of res judicata that must be applied. Reeder v. Succession of Palmer, 623 So.2d 1268, 1271 (La. 1993); Samour v. Louisiana Casino Cruises, Inc., 01-0831 (La.App. 1 Cir. 2/27/02), 818 So.2d 171, 174. Federal law embraces the broad usage of the phrase “res judicata” to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel). Samour, 818 So.2d at 174. Thus, res judi-cata viewed in this broad sense includes foreclosure of both relitigation of matters that have been Rpreviously litigated and litigation of matters that have never been litigated but should have been advanced in the earlier suit. Id.

Under federal precepts, “claim preclusion” or “true res judicata” treats a judgment, once rendered, as the full measure of relief to be accorded between the same parties on the same “claim” or “cause of action.” Reeder, 623 So.2d at 1271. The rule of “claim preclusion” requires that the effect of a judgment extends to the litigation of all issues relevant to the same claim between the same parties, whether or not raised at trial. The aim of claim preclusion is thus to avoid multiple suits on identical entitlements or obligations between the same parties, accompanied, as they would be, by the rede-termination of identical issues of duty and breach. Id. Therefore, claim preclusion will apply to bar a subsequent action on res judicata principles where parties or their privies have previously litigated the same claim to a valid final judgment. Id.; Griffin v. BSFI Western E & P, Inc., 00-2122 (La.App. 1 Cir. 2/15/02), 812 So.2d 726, 730. Accordingly, if a set of facts gives rise to a claim based on both state and federal law, and the plaintiff brings the action in a federal court which had pendent jurisdiction to hear the state cause of action, but the plaintiff fails or refuses to assert his state law claim, res judicata prevents him from .subsequently asserting the state claim in a state court action, unless the federal court clearly would not have had jurisdiction to entertain the omitted state claim, or, having jurisdiction, clearly would have declined to exercise it as a matter of discretion. Reeder, 623 So.2d at 1272-73.

In their appeal, the plaintiffs contend that the trial court erred in sustaining the exception of res judicata because they asserted them state law claims in the federal, suit and the district court expressly declined to exercise its pendent jurisdiction over those claims. However, the defendants do not dispute that the doctrine of federal claim preclusion did not prevent the plaintiffs from filing their state law causes of action in state court. Rather, the defendants argue that the plaintiffs failed to address the adoctrine of issue preclusion, which requires the dismissal of the plaintiffs’ state law claims. ,

Under federal law, the doctrine of collateral estoppel, or issue preclusion, bars the relitigation of issues actually litigated and necessarily decided in an earlier case between the same parties. Samour, 818 So.2d at 175, Under collateral estop-pel, once an issue of ultimate fact is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Id. Thus, under the federal issue preclusion doctrine, the plaintiffs are barred from relitigating a claim in a subsequent lawsuit against different defendants where three elements are present: (1) the issue at stake must be identical to the one involved in the prior action; (2) the issue must have been actually litigated in the prior action; and (3) the determination of the issue in the prior action must have been a necessary part of the-judgment in that action. See Richards v. Board of Com’rs of the Port of New Orleans, 10-1171 (La.App. 4 Cir. 2/2/11), 57 So.3d 1135, 1139.

In this matter, the defendants maintain that the federal district court conclusively determined that they had no involvement whatsoever in the allegedly fabricated drug test and .that the plaintiffs’ state court petition did not allege any new facts that were not included in the federal complaint and considered by the federal district court. The-federal court specifically found that the plaintiffs’ complaint failed to provide, any factual allegation that Mr. Morelia was involved in the 'drug testing. The court also found that the only allegation against Mr. LaSalle was that he asked school board officials to perform a drug test on Mr. Webb, which allegation was contradicted by.the plaintiffs’ own exhibit to the federal complaint. Furthermore, the district court found that there Rwere no factual allegations that Dr. Melvin Bourgeois or Dr. Robert Bourgeois purposefully falsified a drug test to violate any rights of Mr. Webb. The federal district court also found that the plaintiffs failed to allege any conspiracy involving any of these defendants.

In sustaining the two exceptions of res judicata in state court, the trial court concluded:

So I find that the issues—any state law claim would be based upon the same set—the same facts that [the federal district judge] relied upon, his reasons for judgment. And certainly none have been alleged in addition to those reasons. I believe that has been litigated. I believe the same issues are before this court today, state court issues. And I find that—and those issues that were litigated were' necessary for the judgment, the same factual issues.
So I find that this is the same case that’s already been litigated and reduced to a judgment in federal court.

We agree that collateral estoppel. bars relitigation of these same issues. The federal district court ruled on factual issues necessary to its ruling, which were also necessary for the plaintiffs’ state law claims. The district court conclusively determined that neither the Morelia defendants nor the Bourgeois defendants had any involvement with the complained-of drug test or with any drug-test conspiracy. Because the issues are the same as those involved in the prior action, the" issues were actually litigated in the prior action, and the determination of the issues in the prior action was a necessary part of the judgment in that action, we find that the doctrine of issue preclusion bars the plaintiffs from relitigating these same claims in state court. Finding no error by the trial court, we affirm the judgment.

CONCLUSION

Considering the foregoing, we affirm the January 28, 2016 judgment of the trial court that granted the exceptions of res judicata in favor of the defendants, Joseph Morelia, Patrick LaSalle, the Patterson Police Department, the Bourgeois Medical Clinic, LLC, Dr. Robert Bourgeois, and Dr. Melvin Bourgeois, and dismissed all causes of action against them with prejudice. All costs of this appeal are assessed against the plaintiffs, Belva Webb and Faith Webb.

AFFIRMED.

      . We note that the plaintiffs only challenge the trial court’s decision to sustain the exception of res judicata as to their state law claims. They make no argument regarding any federal law claims,

      . We find the case before us more analogous to Samour and find Clayton v. Columbia Casualty Company, 16-0122 (La.App. 1 Cir. 12/14/16), 2016 WL 7239503. (unpublished opinion), writ denied, 17-0089 (La. 2/24/17), 216 So.3d 59, to be distinguishable.

      .The plaintiffs submitted a copy of a February 16, 2012 School Board memo that stated:
      Meeting held , with Lena, Mr. Lockett, Mr, Foulcard, and Mrs, Fryou and Belva Webb, Crossing guard,
      Parent concerns were addressed to’school officials and district [personnel], Concerns of being under the influence, Incident will be turned over to Mr, Armelin[.]
      The memo was signed by the parties, including Mr, Webb,


text:
    STATE IN the INTEREST OF J.A.
    17-500
    Court of Appeal of Louisiana, Third Circuit.
    06/28/2017

      Diane E. Cote, 825 Kaliste Saloom Road, Brandywine III, Suite 150, Lafayette, Louisiana 70508, (337) 262-5913, Counsel for Appellee: State of Louisiana, Department of Children & Family Services
    S. Marie Johnson, Public Defender’s Office, 106 West Berard Street, St. Martin-vffle, Louisiana 70582, (337) 394-1446, Counsel for Appellant: D. A.
    Jocelin Sias, The Sias Firm, LLC, 203 West Main Street, Suite 105, New Iberia, Louisiana 70560, (337) 321-9516, Counsel for Appellee: J. B.
    Raveen Hill, Mental Health Advocates, 302 Dulles Street, Room U-47, Lafayette, Louisiana 70506, (337) 262-2030, Counsel for Appellee: J. A.
    Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   KEATY, Judge.

| í This court lodged the appeal in this case on May 30, 2017, and, on May 31, 2017, issued a rule for the appellant to show cause why the appeal should not be dismissed as untimely filed. According to the record filed in this court, on November 28, 2016, the Clerk of Court’s Office for the Sixteenth Judicial District Court issued notice of judgment informing the parties that the trial court had signed the judgment terminating appellant’s parental rights and certifying the minor child as eligible for adoption on November 16, 2016. Since the case falls under La.Ch. Code art. 332, the appellant had fifteen days from the mailing of notice of judgment to file her motion and order for appeal. The record reflects that the motion and order for appeal were not filed with the trial court until December 14, 2016, i.e., sixteen days from the mailing of notice as certified by the district court clerk’s office. Therefore, this court issued the subject rule to show cause. The appellant filed a brief in response to this court’s rule. Based on the allegations contained in appellant’s response brief, we order a limited remand of this matter as discussed below.

In the brief filed in response to this court’s rule to show cause, appellant points out that in the certificate of mailing of notice which is signed by the deputy clerk of the district court, no physical address is given with respect to appellant’s counsel, unlike some of the others who were sent notice of this judgment. Thus, appellant’s counsel surmises that the district court clerk’s office intended to send the notice of judgment to appellant’s counsel by means other than by mail as required by La.Code Civ.P. art. 1913. Further, appellant’s counsel avers that in speaking with the juvenile minute clerk at some time on or about November 30 or December 2, 2016, she was informed that the signed judgment was to be emailed |ato her. Appellant’s counsel then states that she informed the district court personnel that the notice had to be mailed in order to trigger the delays for seeking an appeal.

While this court cannot consider evidence which is not of record for purposes of deciding this matter, this case presents a similar circumstance to that presented to it in State in the Interest of B.R.C., 16-273 (La.App. 3 Cir. 5/25/16), 192 So.3d 897, in which this court did consider evidence not of record for purposes of deciding whether a limited remand for correction of the record should be ordered in the interest of justice. Thus, the appellant in B.R.C. asserted that a photocopy of the envelope showed that the district court did not place the notice of judgment into the mail on the date indicated in the certificate contained in the record.

In B.R.C., this court relied on Ventre v. Pacific Indemnity Co., 391 So.2d 95 (La. App. 3 Cir. 1980), wherein the appellant filed a motion to remand the appeal in order to correct the record. Particularly poignant for this case, this court quoted Ventre, 391 So.2d at 96, “[a] clerk’s certificate is not conclusively presumed to be correct and may be corrected on proper showing. Soileau v. Tri-State Mutual Insurance Co., 206 So.2d 716 (La.App. 3 Cir.1967).” This court then concluded in B.R.C., 192 So.3d at 899:

[T]his court cannot accept the photocopy of an envelope as evidence to be used on a decision on the merits. However, we can consider this photocopy for the purpose of deciding whether justice requires a remand of this case for the conducting of a hearing before the trial court in order to obtain a ruling from the trial court on the question as to the exact date on which notice of judgment was mailed. Thus, as this court did in Ventre, we grant a limited remand of this appeal and order that the trial court conduct an evidentiary hearing and render a decision as to the actual date on which notice of judgment was mailed to the appellant’s counsel of record by no later than July 25, 2016. Following this hearing and decision by the trial court, we order the ROffice of the Clerk of Court for the Fifteenth Judicial District Court, Parish of Lafayette, to supplement the record in this appeal, in duplicate, with the transcript of the hearing, any evidence submitted at that hearing, and any pleadings- filed and the judgment rendered subsequent to this remand. '

As this court did in B.R.C., 192 So.3d 897, since this court cannot rule on appellant’s counsel’s arguments without the taking of evidence, we hereby order a limited remand of this case for the trial court to hold a contradictory hearing and enter a ruling, no later than August 28, 2017 [60 days from when this ruling will go out; date to be completed prior to dissemination of this court’s opinion herein]. Additionally, we order the Office of the Clerk of Court for the Sixteenth Judicial District Court, Parish of St. Martin, to supplement the record in this appeal, in duplicate, with the transcript of this hearing, any evidence submitted at the hearing, any pleadings filed, and the judgment rendered subsequent to this remand.

LIMITED REMAND ORDERED.


author: WHIPPLE, C.J. McClendon, J.,

text:
    Brenda JONES & Mario Jones, Jr. v. Jason ANDERSON & GoAuto Insurance Company
    NUMBER 2016 CA 1361
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 29, 2017

      Charlotte C. McDaniel McGehee, Baton Rouge, LA, Counsel for Plaintiffs/Appellants, Brenda Jones & Mario Jones, Jr.
    Anderson 0. Dotson, III, Baton Rouge, LA, Counsel for Defendant/Appellee, Jason Anderson
    Chase Tettleton, Stephen Babcock, Baton Rouge, LA, Counsel for Defendant/Ap-pellee, GoAuto Insurance Company
    BEFORE: WHIPPLE, C.J., GUIDRY, McClendon, theriot, and HOLRIDGE, JJ.
   WHIPPLE, C.J.

| ¿This matter is before us on appeal by plaintiffs, Brenda Jones and Mario Jones, Jr,, from a judgment of the trial court granting summary judgment in favor of defendant, GoAuto Insurance Company (“GoAuto”). For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On June 1, 2016, after coming to a stop at a light-controlled intersection on Florida Boulevard in Baton Rouge, the vehicle Brenda Jones was driving was hit in the rear by a vehicle driven by Jason Anderson. Her adult step-son, Mario Jones, Jr., was riding as a guest passenger in the vehicle at the time of the accident. Brenda Jones and Mario Jones, Jr. (hereinafter “plaintiffs”) subsequently filed suit against Anderson and GoAuto Insurance Company for damages allegedly sustained as a result of the collision.

GoAuto answered plaintiffs’,petition and asserted affirmative defenses, contending that the automobile liability insurance policy issued to Anderson by GoAuto was financed through an insurance premium finance agreement entered into by Anderson and Auto Premium Assistance Company, LLC (“APAC”) and that the policy was cancelled effective May 24, 2015, due to Anderson’s nonpayment of a premium installment. Thus, GoAuto averred it was not the liability insurer of Anderson at the time of the, collision herein.

GoAuto subsequently filed a motion for summary judgment and dismissal of plaintiffs’ claims, seeking a judgment declaring that the policy issued to Anderson was cancelled prior to the accident of June 1, 2015, that GoAuto was not liable for |athe damages alleged by plaintiffs, and that GoAuto had no duty to provide a defense to Anderson for any damages alleged.

In support of its motion for summary judgment, GoAuto offered: (1) the affidavit of Angela Pittman, APAC’s operations manager; (2) the GoAuto insurance policy for the six-month coverage period of July 25, 2014 to January 24, 2015; (3) the July 25,2014 Consumer Insurance Premium Finance Agreement Anderson entered into with APAC; (4) the renewal policy declarations sheet for the next coverage period of January 27, 2015 through July 29, 2015; (5) APAC’s May 14, 2016 email to Anderson with attached “TEN (10) DAY NOTICE OF CANCELLATION”; (6) Ms. Pittman’s affidavits of proof of emailed notices to GoAuto; (7) APAC’s letter to GoAuto dated May 24, 2015, requesting cancellation of the policy; and (8) plaintiffs’ answers to interrogatories and requests for admissions of fact. ' "

GoAuto contends that this evidence established that GoAuto issued Anderson an automobile liability insurance policy bearing number 320107, which provided coverage from July 25, 2014 to January 24, 2015, and that Anderson opted to make a down payment on the policy premium and finance the balance of the premium through APAC pursuant to a Consumer Insurance Premium Finance' Agreement entered into on July 25, 2014, through which Anderson agreed to pay a Promissory Note for the balance of the premium. According to the agreement, Anderson requested that APAC use his email address “for all notices required bylaw” Pursuant to the agreement, Anderson further conferred power of attorney to APAC, authorizing APAC to cancel his policy should he fail to pay a premium installment, which GoAuto contends happened herein.

According to GoAuto, upon the expiration of the policy period, Anderson renewed his policy and was issued policy number 320107-12, which provided coverage from January 27, 2015 to July 29, 2015. According to Ms. Pittman’s | ¿affidavit, Anderson again opted to make a down payment on the premium and finance the balance of the premium through APAC. According to GoAuto, after Anderson failed to submit his monthly installment payment due May 13, 2015, APAC emailed Anderson a late notice on May 14, 2015, explaining that “[t]his marks the beginning of your 10 day late notice period, after which your policy will be can-celled and you will owe fees required to reinstate” and attached a “TEN (10) DAY NOTICE OF CANCELLATION.” The notice of cancellation provided that the policy would be cancelled effective 12:01 a.m. on May 24, 2015, if the delinquent installment was not received. APAC did not receive the premium installment before May 24, 2015. Thus, exercising the power of attorney conferred upon it by Anderson in the finance agreement, APAC sent a letter to GoAuto requesting cancellation of the policy for non-payment of premium pursuant to the requirements set forth in LSA-R.S. 9:3550(G)(3)(a). The letter was signed by Ms. Pittman as APAC’s authorized representative.

Following the cancellation of the policy on May 24, 2015, Anderson appeared on June 1, 2015, at 5:04 p.m., after the instant accident herein, and paid the premium installment that was due on May 13, 2015, thereby reinstating the policy. According to Ms. Pittman, no automobile liability coverage existed for Anderson under policy number 320107-12 (or any other GoAuto policy) between the cancellation date of May 24, 2015, and the time of the accident, approximately 3:57 p.m., on June 1, 2015.

Plaintiffs filed a memorandum in opposition to GoAuto’s motion for summary judgment. Although plaintiffs did not offer any documents or exhibits in support of their opposition, they contended that the evidence set forth by GoAuto failed to establish that GoAuto was entitled to judgment as a matter of law.

|fiFollowing a hearing, the trial court granted GoAuto’s motion for summary judgment. In its oral reasons, the trial court found that GoAuto had complied with the laws governing the cancellation of coverage and that accordingly, there was no insurance coverage in effect at the time of the accident. A written judgment was subsequently signed by the trial court on August 1, 2016, granting GoAuto’s motion for summary judgment and dismissing plaintiffs’ claims against it. The judgment further declared that GoAuto had no duty to provide a defense to Anderson in this action.

Plaintiffs filed the instant appeal, contending that the trial court erred in:

(1) finding there was no coverage afforded to Anderson on June 1, 2015;

(2) concluding that GoAuto complied with the laws governing cancellation of insurance;

(3) finding that GoAuto complied with the laws governing cancellation of insurance, which necessarily includes a finding that GoAuto received a valid- cancellation request from a mandate who had authority to make such request;

(4) finding that GoAuto could effectively cancel coverage to Anderson without providing Anderson with a written, mailed notice of cancellation;

(5) finding that the cancellation of insurance coverage could stem from a premium finance company agreement, which created a power of attorney on behalf of an entity;

(6) finding that a cancellation notice of the finance company was valid as to Anderson where there was no proof of mailing of the notice from the finance company to the insurance company pursuant to LSA-R.S. 9:3550;

(7) finding that the notice sent to Anderson by APAC was effective notice of cancellation by GoAuto;

(8) finding there was a valid power of attorney allowing APAC to act as mandatory and cancel the insurance policy issued by GoAuto; and

|fi(9) finding that GoAuto complied with the laws governing the cancellation of coverage to Anderson to be performed by Ms. Pittman, who has never been given authority as a mandatory of Anderson.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 2010-0116 (La. App. 1st Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 2010-2227 (La. 11/19/10), 49 So.3d 387. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. LSA-C.C.P. art. 966(A)(4).

The burden of proof rests on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966(D)(1).

Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Bouquet v. Williams, 2016-0134 (La. App. 1st Cir. 10/28/16), 206 So.3d 232, 237, writs denied, 2016-2077 (La. 1/9/17), 214 So.3d 870, 2016-2082 (La. 1/9/17), 214 So.3d 871 Thus, appellate courts ask the same questions that the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hospital, 93-2512 (La. 7/5/94), 639 So.2d 730, 750.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law "applicable to the case. Brassette v. Exnicios, 2011-1439 (La. App. 1st Cir. 5/14/12), 92 So.3d 1077, 1081, writ denied, 2012-1583 (La. 11/9/12), 100 So.3d 831.

DISCUSSION

Notice of Cancellation

(Assignments of Error Numbers Two and Four)

In these assignments, plaintiffs contend that GoAuto could not effectively cancel coverage where the ten-day notice of cancellation was not sent by mail or delivered by the insurer as required by LSA-R.S. 22:1266, and that any reliance on the notice sent by APAC to Anderson via email was misplaced, as such notice is not compliant with the applicable requirements of law. We disagree.

It is a well-settled canon of statutory construction that the more specific statute controls over the general statute. Sharp v. Sharp, 2005-1046 (La. App. 1st Cir. 6/28/06), 939 So.2d 418, 421, writ denied, 2006-1877 (La. 11/17/06), 942 So.2d 533. “It is a fundamental rule of statutory construction that when two statutes deal with the same subject matter, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more in character.” Burge v. State, 2010-2229 (La. 2/11/11), 54 So.3d 1110, 1113 (quoting State v. Campbell, 2003-3035 (La. 7/6/04), 877 So.2d 112, 118).

| ^Louisiana Revised Statute 22:1266 sets forth the general notice requirements that must be followed by an insurance company in order to effect a cancellation of an insurance policy. See Wiley v. Cornerstone Insurance Company, 2012-0909 (La. App. 1st Cir. 4/26/13)(unpublished opinion). However, LSA-R.S. 9:3550 sets forth the particular law applicable to any person engaged in the business of financing insurance premiums for consumers entering into premium finance agreements. Because LSA-R.S, 9:3550 specifically regulates the cancellation of insurance policies procured through a premium finance agreement with an insurance premium finance company, it is generally applicable where insurance premiums are financed. See Stephens v. LeBlanc, 2003-1460 (La. App. 1st Cir. 5/14/04), 879 So.2d 262, 264; Hodges v. Colonial Lloyd’s Insurance, 546 So.2d 898, 901 (La. App. 1st Cir. 1989); KMJ Services, Inc. v. Hood, 2012-757 (La. App. 5th Cir. 4/10/13), 115 So.3d 34, 37; Nions v. Richardson, 2010-610 (La. App. 5th Cir. 3/9/11), 62 So.3d 217, 219. Moreover, Louisiana courts require strict adherence to these statutory requirements when a finance company ¡exercises its power of attorney to cancel an insurance policy. Delatte v. Lemotte, 93-0754 (La. App. 1st Cir. 12/29/93), 633 So.2d 686, 689.

The main issue in this appeal is whether there was an efféctive notice of cancellation of Anderson’s renewal policy, which was purportedly financed through APAC. However, as noted by plaintiffs, the premium finance agreement through which Anderson purportedly financed the renewal of his policy for an additional six-month period of coverage from January 27, 2016 through July 29, 2015, was not offered in support ‘of the motion for summary judgment herein. Plaintiffs contend that without the premium finance agreement, GoAuto cannot |flestablish the amount of the premium payments, that Anderson was in default of any terms of the premium finance agreement such as to warrant cancellation of the policy, or that GoAuto was entitled to judgment as a matter of law declaring that the policy was cancelled at the time, of the accident.

The record reflects that Anderson’s initial automobile insurance policy and the consumer insurance premium finance agreement for that policy were offered in support of GoAuto’s motion for summary judgment as Exhibits A and B respectively. The affidavit of the operations manager and records custodian for APAC, Ms. Pittman, also offered in support, establishes that upon the expiration of the first six-month period of policy number 320107, Anderson renewed his automobile insurance policy for a second six-month period. The policy, as renewed, was identified as policy number 320107-12 and provided coverage from January 27, 2015, through July 29, 2015. A copy of the declarations for policy number 320107-12 was attached to GoAuto’s motion for summary judgment as Exhibit C. Also, Ms, Pittman attested in her affidavit that the premium finance agreement executed by Anderson on July 25, 2014, contained a power of attorney clause whereby Anderson appointed Gregory W. Tramontin as his agent, and conferred full power and authority upon his agent to execute, on his behalf, a premium finance agreement related to any renewals of the initial policy of automobile insurance. According to Ms. Pittman’s affidavit, upon the renewal of his initial policy, Anderson again “opted” to make a down payment to GoAuto and finance the balance of the premium through APAC.

Notably, however, the premium finance agreement purportedly executed by Anderson to finance the renewal policy (number 320107-12) was not offered in support of GoAuto’s motion for summary judgment. Plaintiffs contend that | inwithout this agreement, GoAuto failed to establish the terms set forth therein governing the cancellation of the renewal policy, and whether the cancellation of his policy was in compliance with the provisions of LSA-R.S. 9:3550 so as to effectively cancel Anderson’s policy prior to the instant accident. Contrariwise, GoAuto, relying on Ms. Pittman’s affidavit, contends in its brief that “the same terms of the [initial] finance agreement applied” to the finance of the renewal policy’s premium.

On review, however, we note that Ms. Pittman’s affidavit merely establishes that (1) “[t]he Consumer Insurance Premium Finance Agreement [for policy number 320107] also contains a Power of Attorney authorizing Jason Anderson’s agent to execute any Consumer Insurance Premium Finance Agreements resulting from renewals of his policy” and (2) that Anderson opted to make a down payment for his policy number 320107-12, to GoAuto Insurance Company in the amount . of $130.00, with the $559.00 balance of the premium financed through APAC. Notably, Ms. Pittman’s affidavit fails to set forth the terms of the premium finance agreement for the renewal policy (number 320107-12), and further fails to establish that the terms of the premium finance agreement for the renewal policy (number 320107-12) were the same as the terms of the premium finance agreement through which Anderson financed the premiums for his initial policy.

Thus, on review, we are constrained to find that where GoAuto failed to offer the premium finance agreement through which Anderson financed the renewal policy, or otherwise establish the terms of the premium finance agreement by which GoAuto contends it procured the cancellation of Anderson’s policy, we are unable to determine whether the policy was validly can-celled or whether such cancellation was in compliance with LSA-R.S. 9:3550. Accordingly, we find that GoAuto failed to establish that it was entitled to judgment in its favor as a matter |T1of law declaring that the policy issued to Anderson was validly cancelled prior to the accident of June 1, 2015.

CONCLUSION

For these reasons, the August 1, 2016 judgment of the trial court, granting GoAuto’s motion for summary judgment and dismissing plaintiffs’ claims against it, is reversed. Costs of this appeal are assessed against the appellee, GoAuto Insurance Company.

REVERSED.

Mc Clendon, J. dissents and assigns reasons.

McClendon, J.,

dissenting.

| iLouisiana Revised Statutes 9:3550G provides, in pertinent part:

G. Insurance contracts may be canceled upon default as follows:

(1) When a premium finance agreement contains a power of attorney enabling ,the insurance premium finance company to cancel any insurance contract, or contracts, or endorsements listed in the agreement, the insurance contract, or contracts, or endorsements shall not be canceled by the insurance premium finance company unless such cancellation is effectuated in accordance with this Subsection,
(2) Upon default of the insurance premium finance agreement by the debtor, the premium finance company shall mail or send an electronic notice of cancellation to the insured, at his last known mailing or electronic address as shown on the records of the insurance premium finance company. ... In the event the default is not timely cured as provided herein and the insurance policy is canceled pursuant to the terms of the insurance premium finance agreement, a copy of the notice of cancellation of the insurance contract shall also be sent to the insurance agent negotiating the related insurance contract whose name and place of business appears on the insurance premium finance agreement ...
(3)(a) Ten days after notice of cancellation 'has been mailed to the insured, if the default has not been cured, the insurance premium finance company may thereafter effect cancellation of such insurance contract, or contracts, or endorsements by sending to the insurer, by depositing in the mail or with a private carrier, or via electronic mail, within five business days after the date of cancellation, except when the payment has been returned uncollected, a copy of the notice of cancellation together with a statement certifying that:
(i) The premium finance agreement contains a valid power of attorney as provided in Paragraph (1) of this Subsection.
(ii) The premium finance agreement is in default and the default has not been timely cured.
(iii) Upon default, a notice of cancellation was sent to the insured as provided in Paragraph (2) of this Subsection, specifying the date of sending by the premium finance company to the insured.
(iv) Copies of the notice of cancellation were sent to all persons shown by the premium finance agreement to have an interest in any loss which may |2occur thereunder, specifying the names and addresses of any governmental agencies, holders of a security interest in the insured property, or third parties to whom the insurance premium finance company has sent notice of cancellation.
(b)(i) Upon receipt of such notice of cancellation and statement from the premium finance company, the insurer shall consider that cancellation of the insurance contract or contracts has been requested by the insured but without requiring the return of the insurance contract or contracts and the insurer may proceed to cancel such contract or contracts as provided in R.S. 22:885. The effective date of cancellation shall be as of 12:01 a.m. on the tenth day after the date of sending of the notice of cancellation as shown in said statement furnished to the insurer by the premium finance company. ... (c) The receipt of such notice of cancellation and statement by the insurer shall create a conclusive presumption that the facts stated in said notice and statement are correct, that the insurer is entitled to rely on such facts and that the cancellation of the insurance contract or contracts is concurred in and authorized by the insured. No liability of any nature whatsoever either in favor of the insured, any governmental agency, holder of a security interest in the insured property, or third party shall be imposed upon the insurer as a result of any misstatement of fact contained in said notice of cancellation or statement furnished by the insurance premium finance company to the insurer, or as a result of failure by the insured, any governmental agency, holder of a security interest in the insured property, or third party to receive the notice of cancellation required by Paragraph (2) of this Subsection, or as a result of failure of the insurance premium finance company to comply with any of the requirements of this Subsection. Upon mailing of any unearned premium and unearned commission to the insurance premium finance company as soon as practicable following such cancellation, the insurer shall be fully discharged from all liability under the insurance contract or contracts for any loss occurring subsequent to the effective date of cancellation.

In this matter, the exhibits submitted by GoAuto in support of its motion for summary judgment effectively demonstrated that APAC complied with the statutory requirements. More specifically, Angela Pittman, the custodian of the records as operations manager for APAC, attested that on May 13, 2015, when Mr. Anderson’s monthly installment became due on his renewal policy and no payment was received, APAC sent a ten-day notice of cancellation to his last known email address, with an effective cancellation date of May 24, 2015 at 12:01 a.m. Ms. Pittman further attested that when the required premium was not received before May 24, 2015, APAC, exercising its power of-attorney given by Mr. Anderson, requested cancellation of policy number 320107-12 for nonpayment of the premium, and a letter requesting ^cancellation of the policy, along with a copy of the ten-day notice of cancellation was forwarded by APAC to GoAuto. Additionally, Ms. Pittman verified that that notice of cancellation from APAC to GoAuto on May 24, 2015, contained a statement with the certifications required by LSA-R.S. 9:3550G(3)(a)(i)-(iv). Policy number 320107-12 was cancelled on May 24,2015 at 12:01 a.m.- The plaintiffs offered no evidence in opposition to the motion for summary judgment.

Additionally, under section G(3)(c), the insurer is entitled to the “conclusive presumption” provided by statute upon its receipt of the notice of cancellation and certifying statement. Stephens v. LeBlanc, 03-1460 (La.App. 1 Cir. 5/14/04), 879 So.2d 262, 265. Section G(3)(c) further provides that the insurer cannot be held liable “in favor of the insured” “as a result of any misstatement of fact contained in said notice of cancellation or statement furnished by the insurance premium finance company to the insurer, ... or as a result of failure of the insurance premium finance company to comply with any of the requirements of this Subsection.” The statutory directive is clear. Id.

Pursuant to LSA-R.S. 9:3560, GoAuto was entitled to rely on the facts stated in the notice of cancellation sent by APAC. Therefore, receipt of the required documents by GoAuto created a presumption in favor of the insurer that the facts stated in said notice and statement were correct, that the insurer was entitled to rely on such facts and that the cancellation of the insurance contract was concurred in and authorized by the insured. See LSA-R.S. 9:3550G(3)(c).

Based on these facts, and finding the renewal policy unnecessary for a determination, I would affirm the trial court.

      . According to the accident report, Anderson reported that plaintiffs’ vehicle came to a sudden complete stop causing him to strike the rear of the vehicle, while Jones reported that she came to a complete stop because the traffic light turned yellow.

      . Anderson filed a separate answer, wherein he asserted affirmative defenses of prescription, peremption, no right of action, compara- . tive fault, third party fault, and failure to mitigate damages as to any claims of plaintiffs.

      . Anderson did not oppose GoAuto’s motion for summary judgment and dismissal of plaintiffs' claims against it.

      . An insurance '‘[p]remium finance agreement” is defined therein as "an agreement by which an insured or prospective insured promises to pay an insurance premium finance company the amount advanced or to be advanced under the agreement to an insurer or to an insurance agent or broker in payment of premiums on an insurance contract together with a service charge as authorized and limited by this Section.” LSA-R.S. 9:3550(B)(4),

      . The three-page premium finance agreement is identified at the bottom of each page as the "Finance Agreement for Policy 320107” and sets forth the policy period and an itemization of the amount financed for that particular policy.

      . A copy of the email and ten-day notice of cancellation are in the record.

      . Copies of the affidavit of proof of emailed notices and of the request for cancellation are in the record.