author: Judge Rosemary Ledet

text:
    Leon WATERS v. Roy OLIVER, Regional Transit Authority, Transit Management of Southeast Louisiana and Veolia Transportation Services, Inc.
    NO. 2016-CA-1262
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 22, 2017

      Patrick G. Kehoe, Jr., PATRICK G. KE-HOE, JR., APLC, 833 Baronne Street, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLEE
    David P. Salley, Kevin M. Frey, SAL-LEY, HITE, MERCER & RESOR, LLC, 365 Canal Street, Suite 1710, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Rosemary Ledet)
   Judge Rosemary Ledet

JjjThis is a personal injury case. The plaintiff, Leon Waters, filed suit for damages for injuries sustained on a Regional Transit Authority (“RTA”) bus when the bus came to an abrupt stop to avoid hitting a preceding vehicle. Following a bench trial, the trial court awarded $695,544.27 in damages in favor of Mr. Waters and against RTA; Veolia Transportation Services, Inc. (“Veolia”); and its insurer, Old Republic Insurance Company (“Old Republic”) (collectively the “Defendants”). The trial court also found the preceding vehicle thirty percent (30%) at fault and thus reduced the damages award to $486,881.00. Both Mr. Waters and Defendants appeal. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On Friday, October 22, 2010 at 10:02 p.m., Mr. Waters boarded a RTA bus in front of the Whole Foods Market on Magazine Street in New Orleans, Louisiana. After entering the bus, Mr. Waters proceeded to the priority seating ^section and sat down in a priority seat located behind the bus driver, Roy Oliver. The bus, which was headed towards the Downtown area of New Orleans, was traveling behind a black truck.

As the bus approached the intersection at Magazine Street and Bordeaux Street, the black truck applied its brakes and made a left turn onto Bordeaux Street. Mr. Oliver applied the brakes to avoid colliding with the truck. At that time, Mr. Waters was ejected from his seat and landed on his right side on the floor near the driver and the door of the bus. Mr. Oliver, as well as two other passengers, went to Mr. Waters’ aid. Shortly thereafter, Mr. Waters complained of shoulder pain.

After checking on Mr. Waters, Mr. Oliver reported the accident and requested an ambulance. Shawn Barnes, a Veolia supervisor, came to the scene. Both Mr. Oliver and Mr. Barnes drafted reports of the accident. Although Defendants concede that RTA buses are equipped with video recording systems, Defendants admit that they cannot produce the video of the October 22, 2010 accident.

Thereafter, Mr. Waters was transported to Touro Hospital by ambulance and treated for his injuries, which are discussed in detail elsewhere in this opinion.

IsOn October 18, 2011, Mr. Waters filed a petition for damages naming as defendants Mr. Oliver, RTA, TMSEL, and Veo-lia as defendants. In his first supplemental and amending petition for damages, Mr. Waters added Old Republic, Veolia’s insurer, as a defendant.

On May 2, 2016, a bench trial commenced. On May 4, 2016, during the Defendants’ case, the parties agreed to recess the trial until the parties had the opportunity to depose a defense witness, Marcia Kirch. On June 13, 2016, the trial resumed and concluded.

On August 29, 2016, the trial court rendered judgment in Mr. Waters’ favor and against RTA. Pointing out that the judgment failed to cast Veolia and Old Republic as liable for the damages award, Mr. Waters filed a motion for new trial. On September 12, 2016, the trial court rendered an amended judgment in Mr. Waters’ favor and against RTA, Veolia, and Old Republic. The trial court also dismissed Mr. Oliver with prejudice for the failure of Mr. Waters to effect service of process. The trial court, in both the original and amended judgments, awarded the following damages:

SPECIAL DAMAGES: $ 445,544.27
Past medical expenses $ 59,689.63
Future medical expenses $ 111,947,64
Past loss of earning capacity $ 112,256.00
Future loss of earning capacity $ 145,894.00
Los[s] of benefits $ 15,757.00-
GENERAL DAMAGES: $250.000.00
_k
TOTAL: $ 695,544.27*
* (Reduced by thirty percent - (30%) for the fault of the preceding driver for an adjusted total damage award of $486,880.989.)

From the trial court’s ruling, both Defendants and Mr. Waters appeal.

DISCUSSION

For ease of discussion, we divide our analysis of the issues presented into the following four categories: (i) liability; (ii) comparative fault; (iii) general damages; and (iv) special damages. We separately address each-category.

Liability

Defendants contend that the trial court erred in finding them liable for Mr. Waters’ injuries. Citing Jacobs v. Reg’l Transit Auth., 03-2158 (La. App. 4 Cir. 4/14/04), 872 So.2d 571, Defendants argue that the trial court erroneously applied the stricter “common carrier” standard of negligence; rather, Defendants maintain | Kthat the general negligence standard applies here. Under general negligence, Defendants contend that Mr. Waters failed to prove Mr. Oliver engaged in conduct that fell below the reasonable person standard of care. Defendants further contend that Mr. Waters failed to prove that his continuing shoulder and neck injuries were caused by the accident.

This court in Jacobs, supra, explained the proper standard to be applied in RTA cases as follows:

Pursuant to La. R.S. 48:1656(23), as amended by Acts 199, No. 735, effective August 15, 1995, the RTA is not considered a. common carrier in a suit for personal injuries. As such, the RTA is not held to the previous higher standard of care that allowed a plaintiff to make out a prima facie case of liability merely by showing that he/she was a fare-paying passenger and sustained an injury, thereby shifting the burden to the RTA to exculpate itself from liability. The 1995 amendment to La. R.S. 48:1656(23) states:
Notwithstanding the provisions of any other law to the contrary, including the provisions of R.S. 45:161 et seq., the authority created herein shall not be deemed a “person” as defined in R.S. 45:162(12) or a “common carrier” as defined in R.S. 45L162(5) nor shall the authority be construed of interpreted to be such. Additionally, the authority shall not be deemed to be a common carrier, or interpreted to be such by any court of this state in a suit for personal injury or property damage.

03-2158 at p. 3, 872 So.2d at 573 (emphasis supplied). Furthermore, any entity contracted to manage or operate the RTA shall not be considered a common carrier |fiin, a suit for personal injury or property damage. La. R.S. 48:1656(23); La. R.S. 48:1653(1). Accordingly, this court has held, as Defendants contend, that absent the stricter standard of proof for common carriers, the proper standard is general negligence. Jacobs, 03-2158 at p. 3, 872 So.2d at 573; see also Manuel v. Reg’l Transit Auth., 09-1256, p. 5 (La. App. 4 Cir. 5/12/10), 36 So.3d 1131, 1133.

The applicable standard of care in this case is thus the general negligence standard; See La, C.C. art. 2315(A) (providing that “[ejvery act-whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”). In a personal injury., suit, a well-settled principle is that liability is, determined, under the duty-risk analysis. Brewer v. J.B. Hunt Transport, Inc., 09-1408, p. 14 (La. 3/16/10), 35 So.3d 230, 240.

Under the manifest error standard, a trial court’s factual determinations will not be reversed unless the appellate court finds a .reasonable factual basis does not exist for the trial court’s finding and that the record establishes that the finding is clearly wrong. Holden v. Zurich Am. Ins. Co., 44,242, p. 4 (La. App. 2 Cir. 5/13/09), 13 So.3d 221, 224. “When findings are based on determinations regarding the credibility of a witness, the manifest error-clearly wrong standard |7demands great deference to the trier of fact’s findings.” Holden, 44,242 at pp. 4-5, 13 So.3d at 224 (citing Hanger One MLU, Inc. v. Unopened Succession of Rogers, 43,120, p. 6 (La. App. 2 Cir. 4/16/08), 981 So.2d 175, 179; Green v. Nunley, 42,343, pp. 2-3 (La. App. 2 Cir. 8/15/07), 963 So.2d 486, 489).

At trial, the parties submitted conflicting evidence regarding the speed of the bus and the proximity of the bus to the black truck. Mr. Waters testified that he frequently caught the bus at the same location in front of the Whole Foods on Magazine Street to get to his place of employment. He explained that he was employed as a room service attendant and a banquet server at the Sheraton New Orleans Hotel • (the “Sheraton”) on Canal Street. According to Mr. Waters, “Mr. Jewel” was the bus operator who normally drove the Magazine Street bus route that he rode; however, Mr. Jewel was off work on the day of the accident. Mr. Waters further testified that he typically boarded the bus at 9:50 p.m. and arrived at the Sheraton around 10:10 p.m. On the day of the accident, the bus was running late; Mr. Waters boarded the bus at 10:02 p.m. After boarding the bus, Mr. Waters felt the bus moving at a speed faster than normal to catch up,

Mr. Oliver, the bus operator on the date of the accident, testified that he has been a bus driver for about nine years. He admitted that he was “behind schedule maybe four or five minutes,” on that day; however, he denied hurrying to make up time. Instead, he testified that he was traveling at approximately 15 miles per hour (“mph”) at the time of the accident. Mr. Barnes, Mr. Oliver’s supervisor, also reported that the bus was traveling at approximately 15 mph. Inconsistently, Mr. IsOliver’s post-accident report, which he drafted about three hours after the accident, stated that Mr. Oliver was traveling at 20 mph.

Marcia Kirch, a defense witness, testified that she was a passenger on the bus at the time of the accident. She testified that the bus may have been traveling between 15 to 25 mph before it came to an abrupt stop.

Bryan LeDuff, a Veolia trainer, testified that Veolia trains its drivers to maintain a safe and proper distance behind a preceding vehicle by implementing a four-second rule. According to Mr. Oliver, at the time of the accident, he was following Veolia’s four-second rule; he was about 60 to 75 feet away from the black truck when he noticed the brake lights of the truck. Mr. Oliver testified that the black truck failed to use its turning signal before turning. As Defendants note in their brief, the appropriate distance between the bus and the black truck was between 80 and 120 feet as evidenced by Mr. LeDuffs testimony. Defendants |9thus maintain that Mr. Oliver, in essence, was in compliance with his RTA training.

Likewise, Mr. Oliver testified that the black truck came to a stop before making a left turn without using its turning signal. He also testified that he used the “stab braking” procedure to slow down rather than slamming on the brakes. In his post-accident report, Mr. Oliver noted that “a black [truck] stop short to turn left. I had to break [sic] hard when Mr. Waters came out of [his] seat onto the bus floor.” Mr. Barnes also noted in his report that the preceding vehicle made a sudden left turn, which caused “the operator [Mr. Oliver] to hit the brakes causing passenger to fall and hit right shoulder on the floor.”

Mr. Waters presented two accident reconstruction experts—Ray Burkart and Dr. Oscar Franklin Griffith, III. Mr. Bur-kart noted that the stab braking procedure should not be used in vehicles with anti-lock braking systems—which the bus in question had—because it will actually take longer for the vehicle to stop. Regarding the distance between the bus and preceding vehicle, Mr. Burkart testified as follows:

|inMR. KEHOE [COUNSEL FOR MR. WATERS]:
Q. At 15 miles per hour and under the four-second rule, what should be the distance between the preceding vehicle, in this case the truck, and the bus if they are, in fact, following the four-second rule?
MR. BURKART:
A. At 15 miles per hour, it would be 88 feet.
MR. KEHOE:
Q. And if the bus driver was going 20 miles an hour, would that distance be greater, sir?
MR. BURKART:
A. Yes.

Mr. Burkart testified that after performing tests, he found that the primary cause of the accident was Mr. Oliver’s inattentiveness. He further opined that if Mr. Oliver was incorrect about the distance between the bus and the preceding vehicle, then the cause was that Mr. Oliver was following the vehicle too closely.

Dr. Griffith testified that if Mr. Oliver’s estimates were' accurate, then hé should have been able to stop the bus without applying hard brakes. He explained that if Mr. Oliver was traveling at 15 mph and was approximately 60 to 75 feet behind the black truck, Mr. Oliver should have been able to stop the bus safely.

In sum, the evidence supports the trial court’s implicit factual finding that that Mr. Oliver’s conduct fell below the general negligence standard of care. Defendants acknowledge tfiat Mr. Oliver was traveling approximately 75 feet behind the black truck, which was less distance than Veolia’s policy requires. Furthermore, both Mr. Waters’ experts—Mr. Burkart and Dr. Griffin—opined that Mr. Oliver’s negligence caused the accident.

h. Defendants also contend that the trial court erred in failing to apply the “sudden emergency” doctrine. See Hickman v. S. Pac. Transp. Co., 262 La. 102, 262 So.2d 385 (1972). Defendants maintain that the black truck, not Mr. Oliver, caused a sudden emergency and that Mr. Oliver acted prudently under the circumstances. Continuing, Defendants contend that given the sudden emergency created by the black truck, they should be relieved of any liability.

In Hickman, supra, the Louisiana Supreme Court held as follows;

One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. ... The rule applies to the defendant’s as well as the plaintiffs conduct; it is, therefore, appropriate in a consideration- of fault as it bears upon contributory negligence; -

262 La. at 112-13, 262 So2d. at 389. As Mr. Waters points out, the jurisprudence has consistently held that the sudden emergency doctrine does not apply to situations in which the party asserting the doctrine was also negligent. See State Farm Mut. Auto. Ins. Co. v. LeRouge, 07-0918, p. 18 (La. App. 4 Cir. 11/12/08), 995 So.2d 1262, 1275 (citations omitted); see also Williams v. Melancon, 08-1155, p. 4 (La. App. 4 Cir. 4/1/09), 9 So.3d 310, 313. Given the record supports a finding that Mr. Oliver was also negligent, the sudden emergency doctrine is inapposite.

Finding the trial court was not manifestly erroneous in finding Mr. Oliver’s actions fell below the standard of care, we turn to the issue of causation. The trial court was presented with conflicting testimony on this issue.

| ^Defendants do not dispute the accident caused Mr. Waters to injury his shoulder and that his shoulder injury required surgery. Defendants, however, dispute any post-August 15, 2011 treatment, when they claim Mr. Waters was discharged from care and released to regular work duty. They thus contend that Mr. Waters’ post-surgery ’ shoulder pain and neck pain were not caused by the accident. According to Defendants, Mr. Waters failed to establish with reasonable certainty that he suffered a residual disability caused by the accident.

As noted earlier in this opinion, Mr. Waters was transported from the scene of the accident to Touro Hospital by ambulance and treated for his injuries. At the hospital, x-rays wei'e taken, Mr. Waters was prescribed medication and given an arm sling, and he was instructed to follow up with his primary care physician. Mr. Waters subsequently sought treatment by his primary care physician, Dr, Henry Evans. Dr. Evans noted that Mr, Waters was experiencing pain in his right shoulder, arm, and hand. Dr. Evans referred Mr. Waters to an orthopedic surgeon, Dr. 'Kevin Watson.

At trial, Dr. Watson testified that x-rays from Touro revealed mild degenerative changes of the shoulder joint, as well as a significant subacromial spur in the shoulder. After reviewing a MRI of Mr. Waters’ shoulder, Dr. Watson discovered that Mr. Waters had a full thickness tear of the right rotator cuff. On December 3, 2010, Mr. Watson performed surgery, on Mr. Waters’ right shoulder to repair the torn rotator cuff and biceps tenotomy. Dr. Watson testified that Mr. Waters’ shoulder injuries were likely degenerative in nature. Although he initially | ^testified that there was no definitive way to determine from the MRI if the rotator cuff tear was from trauma or degeneration, Dr. Watson testified that he found some blood in the rotator cuff during surgery, which he attributed to an acute injury. Dr. Watson further testified that Mr. Waters never mentioned he was experiencing neck pain.

After surgery, Mr. Waters underwent physical therapy. On February 28, 2011, while in physical therapy, Mr. Waters complained of neck pain on his right side. Mr. Waters testified that he never received treatment for shoulder or neck pain before this accident. Dr. Watson last saw Mr. Waters on June 23,2011, at which time Dr. Watson noted that Mr. Waters still had aching pains and weakness of the right shoulder. Thereafter, Mr. Waters continued treatment with Dr. Evans. During that time, Dr. Evans’ notes indicated that Mr. Waters continued to experience pain in his right shoulder and arm and difficulty lifting objects more weighing than five pounds.

On January 8, 2014, Mr. Waters sought treatment from Dr. Laxman Kewalramani, a physiatrist, for continued pain in his neck, right shoulder, and right hand. Dr. L. Kewalramani prescribed physical therapy and medication. Following an MRI of the cervical spine, Dr. .Dropadi Kewalra-mani—an expert in physical medicine and electrodiagnostiocs and rehabilitation specialist—diagnosed Mr. Waters with three cervical disc herniations as well as spasm in the cervical I ^region. Dr. D. Kewalra-mani also found that Mr. Waters was symptomatic with cervieal radiculopathy and had a small tear of the infraspinatus tendon. She prescribed physical therapy and medication.

Dr. D. Kewalramani testified that she reviewed Mr. Waters’ médicál records, including his records pre-dating the accident. Based on her review and multiple physical examinations, she opined that the accident caused the torn rotator cuff, the herniation of the discs, and radiculopathy. She assigned a total permanent partial disability rating of twenty-rtwo percent (22%)—fifteen percent (15%) assigned due to his cervical injury and seven percent (7%) assigned due to his shoulder injury— and found that Mr. Waters has permanent functional restrictions. She further opined that Mr. Waters would live with some degree of pain in his neck and his right shoulder for the remainder of his life. Dr. D. Kewalramani still further opined that Mr. Waters is unable to return to his prior employment.

On July 2, 2015, Dr. Kenneth Vogel, a neurosurgeon, evaluated Mr. Waters. He opined that given the manner in which Mr. Waters fell, Mr. Waters “probably wrenched his neck and his shoulder simultaneously.” Dr. Vogel explained that neck and shoulder injuries can overlap and cause a mixed set of symptoms to the extent that pain in the shoulder can mask a pain in the neck. He opined that Mr. Waters sustained a herniated cervical disc as a result of the October 22, 2010 | ^accident. Dr. Vogel recommended that Mr. Waters continue conservative care, physical therapy, and medication pursuant to Dr. D. Kewalramani’s instructions.

Dr. Gordon Nutik, Defendants’ orthopedic surgeon expert, performed an independent medical examination on Mr. Waters. Dr. Nutik opined that he observed cervical changes in Mr. Waters’ MRI that were degenerative in nature based on the uniformity of the changes. Dr. Nutik further opined that Mr. Waters’ cervical pain was unrelated to the accident.

Dr. Watson last saw Mr. Waters on June 23, 2011. On July 1, 2011, Dr. Watson’s office prepared a “Patient Status Sheet” form to transmit to the insurance company handling Mr. Waters’ disability claim. On that form, Dr. Watson noted that Mr. Waters could return to “regular duty” on August 15, 2011. The form also noted that Mr. Waters was restricted from lifting, pushing, or pulling anything over twenty pounds. Dr. Watson explained that a Patient Status Sheet is “used as guidelines that are continually updated as the patient progresses” and that he would defer to Mr. Waters’ treating physician regarding his current condition and complaints. Nonetheless, Dr. D. Kewalramani testified that during her review of the medical records, she failed to find any record formally discharging Mr. Waters.

“ 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.’” Menard v. Lafayette Ins. Co., 09-1869, p. 15 (La. 3/16/10), 31 So.3d 996, 1007 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989)). “When [ ^findings are based on determinations regarding the credibility of a witness, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings.” Holden, 44,242 at p. 4 (La. App. 2 Cir. 5/13/09), 13 So.3d at 224. This rule— that questions of credibility are for the trier of fact—also applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Papania v. State ex rel. Bd. of Sup’rs of Louisiana State Univ., 12-0551, p. 9 (La. App. 4 Cir. 1/9/13), 108 So.3d 256, 262 (citing Hanks v. Entergy Corp., 06-477, pp. 23-24 (La. 12/18/06), 944 So.2d 564, 580-81; Lasyone v. Kansas City Southern R.R., 00-2628, p. 13 (La. 4/3/01), 786 So.2d 682, 693). “Credibility determinations, including the evaluation of and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact, which should not be disturbed on appeal in the absence of manifest error.” Id.

Although the trial court was presented with conflicting medical testimony, both Dr, D. Kewalramani and Dr. Vogel testified that the accident caused Mr. Waters’ shoulder and neck injuries. We thus cannot conclude that the trial court was manifestly erroneous in finding both Mr. Waters’ shoulder and neck injuries and his residual injuries were caused by the accident.

Comparative fault

As noted, Mr. Waters also appeals. In his appeal, Mr. Waters contends that the trial court erred in allocating 30% of the fault to the preceding vehicle—the black truck. He contends that Mr. Oliver’s speeding and following the preceding vehicle too closely were the sole cause of the accident. Mr. Waters thus contends |17that the Defendants should be found 100% at fault and liable for the entire amount of damages awarded.

Allocation of fault is a factual matter within the sound discretion of the trier of fact, and this determination will not be disturbed on appeal in the absence qf manifest error. See Great W. Cas. Co. v. State ex rel. Dep’t of Transp. & Dev., 06-1776, p. 7 (La. App. 1 Cir. 3/28/07), 960 So.2d 973, 977-78. This court has recognized that “ ‘[fjault in a collision is determined by judging the conduct of each motorist under all the circumstances of the particular case.’” Watson v. Hicks, 15-0046, p. 8 (La. App. 4 Cir. 5/27/15), 172 So.3d 655, 664 (quoting Soniat v. State Farm Mut. Auto. Ins. Co., 340 So.2d 1097, 1099-100 (La. App. 4th Cir. 1976)). Whether the conduct at issue was the primary cause of the accident is irrelevant. Caruthers v. State, Through Dep’t of Transp. & Dev., 97-1450, p. 12 (La. App. 3 Cir. 4/15/98), 711 So.2d 420, 426. Liability may be imposed upon any party whose conduct contributed to causing the plaintiffs injuries. Id.

It is undisputed that when Mr. Oliver applied the brakes on the bus, the black truck was stopping in preparation for making a left turn. The court in Trahan v. Deville, 05-1482, pp. 5-6 (La. App. 3 Cir. 5/10/06), 933 So.2d 187, 192 (on reh’g), found that the duty on a left turning motorist is two-fold: “First, he must signal his turn for at least 100 feet prior to making the turn.” Trahan, 05-1482 at p. 6, 933 So.2d at 192 (citing La. R.S. 32:104). “Second, he must carefully examine the conditions around him to determine whether the turn can be made safely.” Id. (citing Kilpatrick v. All. Cas. & Reinsurance Co., 95-17, pp. 4-5 (La. App. 3 Cir. 7/5/95), 663 So.2d 62, 66. As noted, Mr. Oliver testified that the black truck failed to use its turning signal. Neither Mr. Waters nor Ms. Kirch recalled seeing the black truck use its turning signal. Given the facts of this case, we cannot conclude the trial court’s finding that the black truck was 30% at fault was manifestly erroneous.

General damages

The trial court awarded Mr. Waters $250,000.00 in general damages. Once again, Defendants do not dispute the accident caused Mr. Waters to injury his shoulder and that his shoulder injury required surgery. Defendants, however, claim Mr. Waters was discharged from care and released to regular work duty August 15, 2011. Defendants thus contend that since Mr. Waters was released to work full duty in August 2011, an award of $250,000.00 is excessive.

General damages involve mental and physical pain and suffering, inconvenience, loss of intellectual gratification or physical enjoyment, and other losses of lifestyle that cannot be definitively measured in monetary terms. Hoskin v. Plaquemines Parish Government, 97-0061, p. 8 (La. App. 4 Cir. 12/1/97), 703 So.2d 207, 212. General damages inherently are speculative in nature and cannot be fixed with mathematical certainty. Burch v. SMG, Schindler Elevator Corp., 14-1356, p. 14 (La. App. 4 Cir. 4/7/16), 191 So.3d 652, 662, writ denied, 16-0807 (La. 6/17/16), 192 So.3d 767 (citing Wainwright v. Fontenot, 00-0492, p. 6 (La. 10/17/00), 774 So.2d 70, 74). The Louisiana Supreme Court in Bouquet v. Wal-Mart Stores, Inc., 08-0309, pp. 4-5 (La. 4/4/08), 979 So.2d 456, 459, noted the standard of review applicable to a general damages award as follows:

The standard of review applicable to a general damages award is the abuse of discretion standard. Anderson [v. Welding Testing Lab., Inc.], 304 So.2d [351,] 353 [La. 1974)]; Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La. 1976). The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Duncan [v. Kansas City So. Ry. Co.], 00-0066, p. 13 [(La. 10/30/00)], 773 So.2d [670], 682. “Vast discretion is accorded the trier of fact in fixing general damage awards.”); Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 834 (La. 1991). An appellate court may disturb a damages award only after an articulated analysis of the facts reveals an abuse of diseretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La. 1993); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of an appellate court in reviewing a general damages award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact. Duncan, 00-0066, p. 13, 773 So.2d at 682-83; Youn, 623 So.2d at 1260. To determine whether the fact finder has abused its discretion, the reviewing court looks first to the facts and circumstances of the particular case. Theriot, 625 So.2d at 1340; Youn, 623 So.2d at 1261.

Id. A trial court is “in the best position to place a quantum amount on the injuries suffered as long as such award does not shock the conscious.” Ruffin v. Burton, 08-0893, p. 9 (La. App. 4 Cir. 5/27/09), 34 So.3d 301, 306.

.Mr. Waters testified that his life has been derailed since the accident occurred. Before the accident, he was working between 50 to 52 hours a week at the Sheraton. After the accident, he could not continue working at the Sheraton because he could not lift or carry 40 to 50 pounds, which the Sheraton job frequently required. As a result, he lost his job and benefits at the Sheraton. He also had difficulty paying bills, including his mortgage. He. was forced to take out a reverse mortgage. Mr. Waters also had difficulty finding comparable work. He Unacknowledged that before the accident, he started a tour guide business giving tours in New Orleans and writing a book about slavery. Since the accident occurred, Mr. Waters has been able to give more tours and has continued writing his book, but it is taking him longer than expected due to his physical limitations. Mr, Waters testified that he felt angry and disgusted and that he felt like he lost control of his life.

■Contrary to Defendants’ contentions, Mr. Waters was not discharged on August 15, 2011 and instructed to return to regular duty work. Mr. Waters has been under continued treatment for his shoulder and neck injuries since the accident. Mr. Waters underwent surgery to repair a rotator cuff tear approximately two months after the accident. Despite this surgery and extensive physical therapy, he continued to experience pain, which led to the discovery of the herniated cervical discs. Dr. D. Kew-alramani related the herniated cervical discs to the accident. Both injuries caused a 22% permanent partial disability of the whole body. At the time of trial, Mr. Waters was functionally restricted from picking up, pushing, or pulling weight greater than twenty. pounds. Moreover, Dr. D. Kewalramani testified that Mr. Waters has not been pain-free since she began treating him and that he vyill continue to be in some pain and require care for the remainder of his life. Accordingly, we cannot conclude that the trial court abused its broad discretion in awarding $250,000.00 in general damages.

Special damages

12iThis court in Watson, supra, outlined the standard for reviewing an award of special damages as follows:

Special damages are defined as “those which either must be specially pled or have a ‘ready market value,’ i.e. the amount of damages supposedly can be determined with' relative certainty,” Wainwright v. Fontenot, 00-0492, p. 5 (La. 10/17/00), 774 So.2d 70, 74. Certain types of special damages, including medical expenses, are easily measured. Smith v. Escalon, 48,129, p. 10 (La. App. 2 Cir. 6/26/13), 117 So.3d 576, 583. A plaintiff is required to prove special damages by a preponderance of the evidence. Mack v. Wiley, 07-2344, p. 14 (La. App. 1 Cir. 5/2/08), 991 So.2d 479, 489. The standard of review applicable to an award of special damages is the manifest error standard. Kaiser v. Hardin, 06-2092, pp. 11-12 (La. 4/11/07), 953 So.2d 802, 810.

15-0046 at p. 21, 172 So.3d at 672. The trier of fact is entitled to wide discretion in assessing the appropriate amount of special damages, which is given great deference on review. Menard, 09-1869 at p. 14, 31 So.3d at 1007 (citing Guillory v. Lee, 09-0075, p. 14 (La. 6/26/09), 16 So.3d 1104, 1116; Wainwright, 00-0492 at p. 6, 774 So.2d at 74). The reviewing court “must review the entire record to determine whether the trial court’s finding was clearly wrong .or manifestly erroneous.” Menard, 09-1869 at pp. 14-15, 31 So.3d at 1007. The issue to be resolved on review is not whether the fact finder was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id.

Defendants contend that the trial court erred in awarding special damages for future medical expenses and for the loss of past and future earning capacity. As noted above, the . trial 'court made the following awards: (i) future medical expenses |22of $111,947.64; (ii) past loss of earning capacity of $112,256.00; and (iii) future loss of earning • capacity of $145,894.00. We address separately each award. '

Future medical expenses

Defendants contend that the most of Mr,. Waters’ future medical expenses were related to the treatment of his cervical injury, which was unrelated to the accident. Defendants thus contend that the future medical expenses award should be reduced to the amount their expert, Mr. Cliffe, calculated for future treatment of Mr. Waters’ shoulder. We disagree.

“[A]n award for future medical expenses is in great measure highly speculative and not susceptible to calculation with mathematical certainty.” Menard, 09-1869 at p. 13, 31 So.3d at 1006 (citation omitted); see also Hobgood, 14-0581 at pp. 10-11, 156 So.3d at 1251.

laaDr. D. Kewalramani prepared a life-care plan detailing Mr. Waters’ future medical needs for the next ten years. In the life-care plan, Dr. D. Kewalramani provided detailed estimates of Mr. Waters’ future medical expenses that stemmed from his accident-related injuries. Dr. Vo-gel approved Dr. D. Kewalramani’s life-care plan for Mr. Waters. Dr. Wolfson testified that he calculated Mr. Waters’ total future medical expenses based on Dr. D. Kewalramani’s life-care plan. Dr. Wolf-son testified that future medical expenses for the next ten years amounted a present value to $111,852.00.

Dr. Carla Seyler, Defendants’ vocational rehabilitation counselor and life-care planning expert, also prepared a life-care plan for Mr. Waters; Dr. Nutik assisted in the preparation of that plan. Mr. Cliffe testified that using Dr. Seyler’s life-care plan, he calculated Mr. Waters’ future medical expenses would be between $5,482.00 and $6,348.00. The plan, however, failed to incorporate any care for Mr. Waters’ neck injury; it focused solely on his rotator cuff tear.

Although the trial court was presented with conflicting testimony, a trial court’s determinations regarding the credibility of witnesses, including experts, will not be disturbed absent manifest error. See Pa-pania, supra. Given the evidence, we cannot conclude the trial court was manifestly erroneous in awarding $111,947.64 for his future medical expenses.

Future loss of earning capacity

| ¡^Defendants contend that Mr. Waters failed to establish that he was entitled to an award for future loss of earning capacity. Defendants argue that since Dr. Watson released Mr. Waters to regular duty on August 15, 2011, Mr. Waters’ future earning capacity should be reduced. Defendants further contend that the trial court failed to consider the continued growth of Mr. Waters’ tour guide business.

In Finnie v. Vallee, 620 So.2d 897, 900-01 (La. App. 4th Cir. 1993), this court summarized the principles governing the review of an award for the loss of earning capacity as follows:

Loss of.earning capacity is not the same as lost wages. Rather, earning capacity refers to a person’s potential. Earning capacity is not necessarily determined by actual loss. While the plaintiffs earnings at the time of the accident may be relevant, such figures are not necessarily indicative of his past or future lost earning capacity. The plaintiff need not be working or even in a certain profession to recover this type of award. What is being compensated is the plaintiffs lost ability to earn a certain amount, and he may recover such damages even though he may never have seen fit to take advantage of that capacity. Hobgood v. Aucoin, 574 So.2d 344, 346 (La. 1990). The trial court should consider whether and how much the plaintiffs current condition disadvantages him in the work force. The trial court should thus ask itself what the plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition.
The very nature of lost earning capacity makes it impossible to measure the loss with any kind of mathematical certainty. The facts of each case must take into account a variety of factors, including the plaintiffs condition prior to the accident, his work record prior to and after the accident, his previous earnings, the likelihood of his ability to earn a certain amount but for the accident, the • amount of work life remaining, inflation, and the plaintiffs employment opportunities before and after the accident. Sherlock v. Berry, 487 So.2d 555, 558 (La.App. 4th Cir.1986). While the plaintiff at all time has the burden of persuasion by the preponderance of the evidence regarding his earning capacity before and after the accident, proof need only be that which would reasonably establish the claim. Expert testimony of an economist might best prove this type of loss. However, the plaintiffs own testimony, if credible and truthful, may suffice in proving his claim. Sherlock v. Berry, supra at 558.

19fJd. (footnote omitted); see Hammons, 12-0346, 12-0347 at p. 6, 101 So.3d at 1011; Wendel, 14-0002 at pp. 8-9, 151 So.3d at 835.

Citing Daigle v. U.S. Fid. & Guar. Ins. Co., 94-0304, p. 18 (La. App. 1 Cir. 5/5/95), 655 So.2d 431, 442-43, Defendants contend that when contradictory medical testimony regarding a plaintiffs disability status is presented, appellate courts have found that the evidence failed to establish with reasonable certainty that the plaintiff suffered a residual disability caused by the accident. Daigle, however, is distinguishable from this case. In Daigle, the plaintiff was in the personnel basket of a crane when the crane tipped over causing the personnel basket to fall to the ground and plaintiff to sustain injuries to his neck, shoulder, low back and wrist and a temporal mandibular joint problem. Daigle, 94-0304 at pp. 2, 8, 655 So.2d at 434-37.The jury awarded plaintiff $5,788.63 for past medical expenses and $2,789.85 for “Lost wages (past, present, future) and loss of earning capacity.” Daigle, 94-0304 at p. 3, 655 So.2d at 434, 434. The jury, however, failed to allocate the latter award between past lost wages and loss of future wages or loss of earning capacity Daigle, 94-0304 at p. 15, 655 So.2d at 441. The plaintiff filed a motion for JNOV seeking to increase the damages award, which the trial court denied. Daigle, 94-0304 at p. 4, 655 So.2d at 435.

The appellate court found that given the jury awarded the plaintiff past medical expenses but not future medical expenses, the jury must have concluded that the plaintiff was capable of returning to work as of the time of trial. Daigle, 94-0304 at p. 15, 655 So.2d at 441. The appellate court thus assumed that the jury 12f;awarded past lost wages only but not future loss of earnings or loss of earning capacity. Daigle, 94-0304 at pp. 17-18, 655 So.2d at 442. Furthermore, based on the conflicting medical testimony regarding the extent of the plaintiffs disability and his ability to return to work, the appellate court found that reasonable people could differ regarding whether the future loss of earnings or loss of earning capacity award was abusively low; thus, the trial court correctly denied the motion'for JNOV. Id. The appellate court also found that since the medical testimony was contradictory, the jury did not abuse its discretion in refusing to award plaintiff damages for future loss of earnings or loss of earning capacity. Daigle, 94-0304 at p. 18, 655 So.2d at 442-43.

In the present case, Dr. D. Kewalramani opined that Mr. Waters has a total permanent partial disability rating of 22% and permanent functional restrictions. Mr. Waters was not officially instructed to return instructed by Dr. Watson to return to regular duty on August 15, 2011. Dr. Watson testified that he had not treated Mr. Waters since June 23, 2011, and thus he would defer to Mr. Waters’ treating physician regarding his current condition and complaints.

Dr. Bobby Roberts, Mr. Waters’ vocational evaluation expert, testified that he performed various vocational tests on Mr. Waters. Dr. Roberts opined that Mr. Waters had limited range of motion, difficulty working with his right arm parallel to tabletop height, and limited endurance. He noted that Mr. Waters had difficulty maintaining his head and neck flexed throughout the sedentary test. Dr. Roberts thus concluded that Mr. Waters was not employable in a competitive labor market la7for sedentary work. Although Dr. Seyler disagreed with Dr. Roberts’ assessment, she conceded that Mr. Waters requires a sedentary or light,' physical exertion job.

Furthermore, Dr. Wolfson testified that after a credit for $10,000 per year from Mr. Waters’ other income (his tour guide business, for example), his total future lost earning capacity until age 75 would be $145,894.00. Mr. Waters testified that he hoped to be like his father and work until 81 years old.

Given the evidence, we cannot conclude the trial court abused its discretion' in awarding $145,894.00 for. loss of future earning capacity.

DECREE

For the forgoing reasons, the trial court’s judgment is affirmed.

AFFIRMED

      . Although the trial court’s judgment awarded $486,880.989 in damages, we round the award to $486,881.00.00 for ease of discussion.

      . On this date accident, Mr. Waters was 61 years old.

      . The priority seating section is located in the front of the bus. In the priority seating section, there are approximately six seats—three seats on each side of the bus. The priority seats face each other, rather than the front of the bus.

      . At the time of the accident, Mr. Oliver was employed by Veolia—the contracted management operator of the RTA buses. Earlier, Mr. Oliver was employed by Transit Management of Southeast Louisiana (“TMSEL”), which managed the RTA bus operations until around September 2009. The parties stipulated that Mr. Oliver was in the course and scope his employment with Veolia at the time of the October 22, 2010 accident.

        . See Freeman v. Zara's Food Store, Inc., 16-0445, p. 14 (La. App. 4 Cir. 11/2/16), 204 So.3d 691, 700 ("[t]he general rule is that an amendment to add a party to a judgment is a change of substance, not of phraseology, that can only be accomplished by motion for a new trial or on appeal.”).

      . Veolia asserts the following five assignments of error:
      1. The trial court’s finding of liability upon the defendants based upon the evidence was, in effect, a finding that the defendants were a "common carrier,” in violation of Louisiana law.
      2. The trial court erred in not applying the sudden emergency doctrine based upon the evidence,
      3. The trial court erred in finding that plaintiff's continued right shoulder treatment after being released for full duty was caused by the October 22, 2010 accident,
      4. The trial court erred in finding that plaintiff’s cervical spine injuries were caused by the October 22, 2010 accident.
      5. The trial court erred in its award to Plaintiff of special damages for future medical expenses and loss of past and future earning capacity.
      Mr. Waters’ sole assignment of error is as follows: "The Trial Court correctly found that Mr. Oliver was at fault in causing the accident, but committed legal error in finding the black truck at 30% fault since Mr.. Oliver knew the vehicles would bé braking at the intersection'and his own negligence created an emergency situation necessitating hard braking.”

      , See La. R.S. 45:162(5)(a), which defines "common carrier” as follows:'
      "Common carrier by motor vehicle” means any person, other than a contract carrier by bus, the essential nature of whose business comprises engaging in, soliciting, or accepting household goods, passengers, or waste, for intrastate transportation for hire, charge, or compensation as an employment or holding himself out as so available to the public generally and indiscriminately for such business, whether or not the business is conducted over a regular route, between fixed termini, within a defined area, or upon a regular or irregular schedule.

      . The duty-risk analysis requires that a plaintiff prove the following six factors; (1) the defendant had a duty to conform his conduct to a specific standard of care; (2) the defendant failed to conform his conduct to the appropriate standard of care; (3) the defendant's substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and (5) actual damages; Brewer, 09-1408 at p. 14, 35 So.3d at 240 (citing Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217, p. 6 (La. 4/3/02), 816 So.2d 270, 275-76). Whether a duty is owed is a question of law; whether a defendant failed to confirm his conduct to the appropriate standard of care and has breached a duty owed is a question of fact, Id. (citing Mundy v. Dep’t of Health & Human Res., 620 So.2d 811, 813 (La. 1993)).

      . Ms. Kirch also testified that she recalled a man sitting across from her was propelled out of his seat and landed on the floor of the bus. According to Ms. Kirch, the fall looked fabricated. She further testified that she did not recall Mr. Waters being a passenger on the bus that day.

      . Veolia’s company policy describes the four-second rule as follows:
      Veolia Transportation Operators must establish and maintain at least a four (4) second following distance during clear, dry weather conditions to safely avoid other vehicles making a sudden stop or other unexpected maneuver
      * * ⅜
      Following distance should be increased when driving in night conditions, inclement weather, fog, or other adverse driving conditions.

      .Mr. LeDuff originally testified that Veolia teaches its drivers to stay one to three bus lengths (which is approximately 40 to 120 feet) behind a preceding vehicle. On cross-examination, however, Mr. LeDuff testified that he teaches drivers that the safe following distance is normally two to three bus lengths, or 80 to 120 feet. He further testified as follows:
      Q. So if you only—have you taught Mr. Oliver it's only 40 feet, one bus length is a good following distance?
      A, No, two bus lengths. When I—go ahead.
      Q. It is two to three bus lengths?
      A. Right.
      Q. You haven’t taught Mr. Oliver that the safe distance is only 40 feet, have you?
      A. No,

      . Both Mr. Waters and Ms. Kirch did not recall seeing the black truck use a turn signal.

      . Dr. Griffith was certified as a physics expert with an emphasis in accident reconstruction.

      . Shortly after the initial visit, Dr. L. Kewal-ramani died. Thereafter, Mr. Waters continued treatment with Dr. D. Kewalramani, who is Dr. L, Kewalramani’s wife.

      . Defendants’ assignment of error regarding the trial court’s award of past lost wages may be considered waived because it was not directly addressed in their brief. See Rule 2-12.4. Regardless, this assignment of error is unpersuasive. "A claim for lost wages need not be proven with mathematical certainty; it only requires such proof- which reasonably establishes plaintiff's claim,- which includes plaintiff’s own reasonable testimony.” Wendel v. Travelers Ins. Co., 14-0002, p. 8 (La. App. 4 Cir. 10/8/14), 151 So.3d 828, 835 (citation omitted). A plaintiff seeking damages for past lost wages ‘‘bears the burden 'of proving lost earnings and that the time missed from work was a result of the injury.' " Hobgood v. State Farm Mut. Auto. Ins. Co., 14-0581, p. 14 (La. App. 4 Cir, 12/17/14), 156 So,3d 1244, 1253 (quoting Hammons v. St. Paul, 12-0346, p. 9 (La. App. 4 Cir. 9/26/12), 101 So.3d 1006, 1012). Dr. Shael Wolfson, Mr. Waters’ forensic economics expert, testified that he reviewed documents relating to Mr. Waters' wages and income. After deducting income earned from other employment, Dr. Wolfson , calculated Mr. Waters’ past lost wages from the date of injury to trial amounted to $112,256.00. Dan Cliffe, Defendants’ expert, testified that he calculated Mr. Waters’ past lost wages from injury to trial based on the assumption that Mr. Waters could return to regular duty work on August 15, 2011 earning minimum wage. Based on this assumption, Mr. Waters’ total past lost wages was approximately $96,500.00. As noted, Dr. Watson neither discharged Mr. Waters from care not instructed him to return to regular duty work on August 15, 2011.

      . At trial, the parties stipulated that Mr, Cliffe’s testimony would consist of his expert opinion regarding his analysis of Mr. Waters’ wages earned both before and after the acci- , dent,

      . Dr. Wolfson testified that the value of the future medicals Mr. Waters would likely incur was $111,852.00. We thus note that the trial court’s award is slightly higher than Dr. Wolf-son’s calculations. See Ruffin, supra, (observing that a trial court is "in the best position to place a quantum amount on the injuries suffered.”).


source: Caselaw Access Project

license: Public Domain

text:
    LATTER & BLUM, INC. v. Teresa DITTA, M.D. and Frank M. Scurlock Terri Ditta, M.D. and Latter & Blum Inc. v. Frank M. Scurlock
    NO. 2017-CA-0116, NO. 2017-CA-0117
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 22, 2017

      Jack A. Ricci, Michael S. Ricci, Jonathan L. Schultis, Brian G. LeBon, RICCI PARTNERS, LLC, 101 W. Robert E. Lee Boulevard, Suite 400, New Orleans, LA 70124, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Charles L. Stern, Jr., Ryan M. McCabe, Elise M. Henry, STEEG LAW FIRM, LLC, 201 St. Charles Avenue, Suite 3201, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Rosemary Ledet)
   Judge Rosemary Ledet

|! This is a consolidated concursus and damages action. This action arises out of an alleged breach of an agreement to purchase immovable property and resulting forfeiture of the deposit. Following a bench trial, the trial court rendered judgment in favor of the defendant-purchaser, Frank Scurlock, and against the plaintiff-seller, Teresa (“Terri”) Ditta, M.D., and her real estate agent, Latter & Blum, Inc. The trial court also awarded Mr. Scurlock the return of his $100,000 deposit, which the real estate agent had deposited into the registry of the court. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 28, 2013, Dr. Ditta, as seller, and Mr. Scurlock, as buyer, entered into a Louisiana Residential Agreement to Buy or Sell (the “Agreement”). The Agreement was for the purchase of a mansion located at 3711 St. Charles Avenue in New Orleans, Louisiana—an approximately 18,000 square feet lot (the “Property”). In the Agreement, the Property is described as “including all buildings, structures, components parts, and ... all fences.” The purchase price |2was $3,400,000. The parties agreed to divide the purchase price into the following two parts: (i) the immovable property—specifically including the fences—to be sold for $1,800,000; and (ii) certain furnishings—miscellaneous household goods—and a limousine to be sold for $1,600,000. The Agreement was an “all cash” sale. In addition to the purchase price, the Agreement required Mr. Scur-lock to make a deposit of $100,000 to be held in escrow by Latter & Blum.

In exchange for Mr. Scurlock’s payment of the deposit and the purchase price, the Agreement obligated Dr. Ditta to deliver a merchantable title at closing; the Agreement provided as follows:

The SELLER shah deliver to BUYER a merchantable title at SELLER’S costs. ... SELLER’S inability to deliver merchantable title within the time stipulated herein shall render this Agreement null and void, reserving unto BUYER the right to demand the return of the Deposit and to recover from SELLER actual costs incurred in processing of sale as well legal fees incurred by BUYER.

On July 25, 2013, the day before the scheduled closing, Mr. Scurlock’s previous attorney and the closing attorney—Ewell “Corky” Potts, III—sent an email to Dr. Ditta’s attorney—James Mounger. In this email, Mr. Potts acknowledged that judgment and mortgage issues had been addressed properly; however, he raised issues regarding fence encroachments and misalignments. Mr. Potts stated that the new survey, dated July 17, 2013, revealed fence encroachments or misalignments by the Property onto adjoining properties. Mr. Potts also stated that he had reviewed “the lawsuit” and had not found “a resolution to the boundary dispute with the adjoining owner which was purported to be 4 S ^Investments, LLC” (the “2005 Lawsuit”). For these reasons, Mr. Potts, on Mr. Scurlock’s behalf, invoked the thirty-day automatic extension provided for in the Agreement. The closing was rescheduled for August 26, 2013.

Attempting to cure the alleged fence encroachment and misalignment issues, Dr. Ditta, assisted by her two attorneys, Mr. Mounger and Lawrence Genin, executed boundary agreements with the owners of each of the following three adjoining properties: 1628 Amelia Street, 1615-17 Peniston Street, and 3721 St. Charles Avenue. Dr. Ditta spent approximately $6,000 to secure the three boundary agreements. By the three boundary agreements, the parties agreed to the boundary lines reflected by the existing fence surrounding the Property. As the trial court noted, “Dr. Ditta testified that it was her intent to resolve the alleged-encroachments before the August 26th closing date.”

On August 18, 2014—eight days before the closing date—Mr. Scurlock sent an email to multiple recipients, including Dr. Ditta and Mr. Potts (the “Email”). In the Email, Mr. Scurlock alluded to his contentious divorce proceeding; he stated pthat his soon-to-be former wife, Patricia Scur-lock (“Patty”), and her legal team were “trying to control” him. Expressing his desire to cancel the purchase of the Property, Mr. Scurlock stated:

Corky [Potts], I am not going to show up for the St. Charles closing on August 26th as well so [P]atty will share equally in the default provisions of that as well. This was to be my birthday present that [RJegions was financing[,] but I will forgo that as well without settlement and documents in place. Amy with [Rjegions was close to funding that.

On August 22, 2013, Dr. Ditta’s attorneys recorded the three boundary agreements in the Orleans Parish conveyance records. • On that same date, one of Dr. Ditta’s attorneys, Mr. Genin, sent a letter to Mr. Potts seeking information on whether Mr. Scurlock was going to purchase the Property. The letter stated that if Mr. Scurlock was going to default, as he stated in the Email, Dr. Ditta would pursue the $100,000 deposit, which was in escrow. Mr. Genin further stated that his “client is ready, willing, and able to conclude this matter at any time and place so designated” and that “all requirements to deliver merchantable title to the buyer have been met.”

On August' 26, 2013, Mr. Scurlock, as he stated in the Email, failed to appear at the closing; however, his attorney, Mr. Potts, attended. In lieu of dosing, Mr. Potts performed a proems verbal in which he explained that significant title deficiencies regarding the fence encroachments • still remained, rendering the property unmer-chantable. Mr; Potts also advised that Mr. Scurlock was not accepting title to the Property because the title was unmer-chantable.

1 ^Shortly thereafter, Latter & Blum notified Mr. Scurlock that he was in default. On September 11, 2013, Mr. Scurlock made a second offer to purchase the Property for $1,800,000; this offer was rejected. On September 18, 2013, Dr. Ditta sold the property to a third party, Bob G. Dean, Jr., for $2,100,000. The movables were auctioned.

This litigation began when both Mr. Scurlock and Dr. Ditta requested that Latter & Blum release the $100,000 deposit to them. On September 17, 2013, Latter & Blum filed the instant concursus action pursuant to La. R.S. 37:1435(H) to resolve the dispute over the deposit; it deposited the $100,000 into the registry of the court. In the concursus action, Latter & Blum named as defendants Dr. Ditta and Mr. Scurlock. Both Dr. Ditta and Mr. Scurlock answered the concursus action and named a defendant-in-reconvention. Dr. Ditta named Mr. Scurlock; Mr. Scurlock named his former wife, Ms. Scurlock.

On September 18, 2013, Dr. Ditta and Latter & Blum jointly filed a damages action against Mr. Scurlock (the “Damages Action”). In the Damages Action, Dr. Ditta requested damages for breach of the Agreement; Latter & Blum requested the commission that it would have earned had the sale occurred. On November 24, 2015, the trial court granted the parties’ joint motion-to transfer the later-filed Damages Action to the same division as the earlier-filed concursus action and to consolidate the two actions for trial.

On October 31, 2014, Dr. Ditta filed a motion for partial summary judgment in the concursus action, which had not yet been consolidated with the. Damages | (¡Action. She contended that there was no genuine issue of materialiact in dispute as to whether Mr. Scurlock breached the Agreement. According to Dr. Ditta, Mr, Scurlock, by the Email, anticipatorily breached the Agreement; defaulted under the Agreement; and thus was liable to her. She also contended that the Property was merchantable and that any alleged defect was cured when she executed the boundary agreements, for consideration, with the adjoining property owners.

The trial court denied Dr. Ditta’s motion for partial summary judgment. This court denied Dr. Ditta’s writ application. Latter & Blum, Inc. v. Ditta, 15-160 (La. App. 4 Cir. 3/25/15) (unpub.). In so doing, this court stated that “[considering that genuine issues of fact exist in relation to the merchantability of 3711 St. Charles Avenue, the trial court properly denied relator’s motion for partial summary judgment on January 13, 2015.”' Id.

In July 2016, a three-day bench trial was held. Following the trial, the trial court took the matter under advisement. On October 10, 2016, the trial court rendered judgment in Mr. Scurlock’s favor, finding:

• [Mr.] Scurlock has established by' a preponderance of the evidence that the title to Dr. Ditta’s property was not merchantable on the scheduled closing date. Therefore, he was not required to buy the [Property and is entitled to the $100,000 deposit presently held in the Court’s registry.
• [Mr.] Scurlock’s 18 August 2013 email did not anticipatorily breach the purchase agreement. Accordingly, [Dr.] Ditta’s claims for damages, along with Latter & Blum’s $156,367.62 claim for sales commissions, are dismissed. .

This appeal by Dr. Ditta and Latter & Blum (the “Appellants”) followed.

J^STANDARD OF REVIEW

. Factual findings are reviewed under “the manifest error-clearly wrong standard, which precludes the setting aside of a district court’s finding-of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.” Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98 (citing Cenac v. Public Access Water Rights Ass’n, 02-2660, p. 9 (La. 6/27/03), 851 So.2d 1006, 1023). Under the manifest error standard; “the issue to be resolved by a reviewing court is not whether the trier of fact was right .or- wrong, but whether the faetfin-deris conclusion was a. reasonable one.” Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La. 1993). The manifest error standard of review also applies to mixed question of law and fact. Brasseaux v. Town of Mamou, 99-1584, pp. 7-8 (La. 1/19/00), 752 So.2d 815, 820-21. Questions of law are reviewed using the.de novo standard. 2400 Canal, LLC v. Bd. of Sup’rs of Louisiana State Univ. Agr. & Mech. College, 12-0220-22, p. 5 (La. App. 4 Cir. 11/7/12), 105 So.3d 819, 824.

DISCUSSION

Although Dr. Ditta and Latter & Blum assert about a dozen assignments of érror, we find that this appeal presents only two issues: (i) anticipatory breach of contract; and (ii) merchantability of title. We separately address each issue.

' IsAnticipatory Breach

Louisiana courts have recognized the doctrine of anticipatory breach of contract. The. doctrine of anticipatory breach of contract “ ‘applies when an obligor announces he will not perform an obligation which is due sometime in the future.’” Fertel v. Brooks, 02-0846, p. 13 (La. App. 4 Cir. 9/25/02), 832 So.2d 297, 305 (quoting Gulf Coast Bank & Trust Co. v. Rick Granger Enterprises, 2001-0656, p. 3 (La. App. 3 Cir. 10/31/01), 800 So.2d 402, 404 (quoting B & G Crane Service, Inc. v. Aetna Cas. and Sur. Co., 586 So.2d 710, 712 (La. App. 3rd Cir. 1991)). Under those circumstances, “[t]he obligee need not wait until the obligor fails to perform for the contract to be considered in breach.” Id. The jurisprudence, however, also has recognized the principle of retraction of an anticipatory breach (repudiation) of contract. See Marek v. McHardy, 234 La. 841, 855-56, 101 So.2d 689, 694 (1958).

| ¡/‘Following an anticipatory repudiation of a contract, the repudiator may, by acting quickly enough, retract the repudiation and reinstate the contract as to future performance.” 15 Richard A. Lord, WIL-LISTON ON CONTRACTS § 43:19 (4th ed. 2014). Acknowledging this principle of retraction, the Louisiana Supreme Court has stated that “[i]t is generally recognized ... that the repudiator may retract his repudiation unless the promisee, in relying on the repudiation, has changed his position to such an extent that subsequent performance is impractical, in which case the injured party may, nevertheless, recover damages.” Marek, 234 La. at 855-56, 101 So.2d at 694.

Both in her motion for partial summary judgment and at trial, Dr. Ditta argued that the Email established Mr. Scurlock’s anticipatory breach. At trial, the other appellant, Latter & Blum, joined in this argument. Mr. Scurlock neither disputed the authenticity of the Email, nor denied sending it. Rather, he argued that the meaning of his statements in the Email were susceptible to interpretation; that in the Email, he did not unequivocally refuse to execute the act of sale; and that there was no evidence that he would not have closed if Dr. Ditta had cured the title defects. He further argued that his performance was not due until Dr. Ditta provided merchantable title at the closing. Stated otherwise, he argued that the doctrine of anticipatory breach did not apply because Dr. Ditta’s delivery of merchantable title was a sus-pensive condition.

hfAgreeing with Mr. Scurlock, the trial court stated in its reasons for judgment the following:

[Mi*.] Scurlock’s obligation to buy was not due until Dr. Ditta could deliver merchantable title. The purchase agreement states that the “Seller’s inability to deliver merchantable title within the time stipulated ... shall render this Agreement null and void, reserving unto Buyer the right to demand the return of the deposit.” The Contract states that Dr. Ditta could not require Scurlock to buy the property absent merchantable title—a suspensive condition. Therefore, [Mr.] Scurlock had no obligation to buy because Dr. Ditta’s suspensive condition (delivering merchantable title) never occurred.

On appeal, Appellants contend that Dr. Ditta’s obligation to deliver merchantable title was not a suspensive condition; rather, they contend it was a resolutory condition. See Humble Oil & Refining Co. v. Lewis, 245 La. 499, 159 So.2d 132 (1963). For this reason, they contend that the trial court erred in failing to find the Email constituted an anticipatory breach. We find it unnecessary to resolve the legal question of whether providing merchantable title at closing is properly classified as a suspen-sive, as opposed to a resolutory, condition. Rather, we find the principle of retraction applies here,

Even assuming, arguendo, the Email was an anticipatory breach (repudiation), we find the repudiation was retracted before Dr. Ditta changed her position in reliance on it. At trial, Dr. Ditta acknowledged that after the Email, she was in contact with Mr. Scurlock by text (or by phone) and that he expressed his interest in consummating the transaction. Dr. Ditta explained that she and Mr. |nScurlock had each other’s cell phone numbers, and they texted each other “all the time” during the period at issue. Dr. Ditta admitted that after the Email, Mr. Scurlock texted her that he “so want[s] this transaction to close” and “yes I want the house.”

Mr. Scurlock’s testimony tracked Dr. Ditta’s testimony on this point. He explained that he communicated—usually by text—with Dr. Ditta multiple times after the Email. He testified that after the Email, he reassured Dr. Ditta that he wanted to purchase the Property and that he texted her that he wanted the transaction to close. He also recalled texting her on the day before the closing that he wanted the Property. Moreover, he testified that after the Email, he instructed Mr. Potts to move forward with the closing. He further testified that if Mr. Potts had confirmed to him the title was clear as of the closing date, he would have purchased the Property.

The record reflects that after the Email, both sides continued to work towards the closing. Dr. Ditta continued her efforts to secure and to record the boundary agreements; Mr. Potts continued to prepare for the closing and attended it, albeit only to prepare a procbs verbal. Given these circumstances, even assuming the Email was an anticipatory breach (repudiation), the renunciation was retracted before Dr. Dit-ta changed her position in reliance on it. Appellants’ reliance on the doctrine of anticipatory breach is thus misplaced.

Merchantability of title

Resolution of this case thus turns, as the trial court held, on whether Dr. Ditta delivered merchantable title at the August 26, 2013 closing. Resolving the issue in Mr. Scurlock’s favor, the trial court found that Dr. Ditta failed to deliver merchantable title because the fence encroachments were suggestive of future 112litigation. On appeal, Appellants contend that the trial court erred in finding that the Property was not merchantable, legally and factually- .

Legally, Appellants contend that the trial court seemingly applied century-old case law that “[o]ne should not be made to accept a title tendered as good, valid and binding unless it is entirely legal from every point of view.” Bodcaw Lumber Co. v. White, 121 La. 715, 721, 46 So. 782, 784 (1908). They contend that the antiquated standard of merchantability the trial court seemingly relied upon of “perfect title, free of all technical defects” is not the law. Rather, they contend the law is the “less stringent standard” enunciated by this court in Bart v. Wysocki, 558 So.2d 1326, 1328-29 (La. App. 4th Cir. 1990).

Mr. Scurlock counters that the trial court, both in its denial of Dr. Ditta’s motion for partial summary judgment and in its reasons for judgment, recited the following oft-cited, hornbook standard of merchantability:

Property has a merchantable title when"'it can be readily sold or mortgaged in the [ ^ordinary course of business by reasonable persons familiar with the facts and questions involved. Roberts v. Medlock, 148 So. 474 (La. App. [2d Cir.] 1933). ‘[O]ne should not be made to accept a title tendered as good, valid and binding unless it is entirely legal from every point of view.’ Bodcaw Lumber [Co.] v. White, 121 La. 715, 46 So. 782, 784 (1908). The promisee in a contract to sell is not called upon to accept a title which may reasonably suggest litigation. Marsh v. Lorimer, 164 La. 175, 113 So. 808 (1927). And while the amount may be small, ‘it cannot be said that because of this fact the danger of litigation is‘not serious. Young v. Stevens, 252 La. 69, 97, 209 So.2d 25, 35 (1967). No one can be forced to buy a lawsuit.’ Id.

Continuing, Mr. Scurlock notes that the Bart case cites with approval the Supreme Court’s Young case. Moreover,. the Bart case recites the same merchantability principles discussed in the trial court’s reasons for judgment. For instance, the Bart case repeats verbatim the statement the trial court quoted from Roberts, supra, that “[property has a merchantable title when it can be readily sold or mortgaged in the ordinary course of business by reasonable persons familiar with the facts and questions involved.” The Bart case also quotes the “reasonably suggestive of litigation” language, citing in support the Marsh case. Thus, Mr. Scurlock submits that the legal standard applicable to this dispute on merchantability cannot be disputed. We agree.

In the Bart case, this court summarized the legal standard of merchantability as follows: .

Property has a merchantable title when it can be readily sold or mortgaged in the ordinary course of business, by reasonable persons familiar with the facts and questions of law involved. Vallery v. Belgard, 379 So.2d 1201, 1204 (La. App. 3[rd] Cir. 1980); Langford Land Co. v. Dietzgen Corp., 352 So.2d 386, 388-389 (La. App. 4 Cir. 1977).
Title does not become unmerchantable merely because litigation is possible, but only when'the title is reasonably suggestive of future litigation. Langford Land, supra, 352 So.2d at 388.
Title is deemed unmerchantable only when there are outstanding rights in a third person of a substantial nature against the property, subjecting the vendee to servious [sic] litigation. Langford Land, supra, 352 So.2d at 388.
In the Langford Land case, this court relying upon earlier jurisprudence defined merchantable title as:
... one which can be readily sold or mortgaged in the ordinary course of business, to a reasonable person .familiar with the facts and appraised of the question of law involved. It need not be free from every technical defect, of all suspicion, or the possibility of litigation. It must be a record title free of rational substantial doubt to the extent that a purchaser should feel that he can hold his purchase in peace without the probability of attack and with reasonable assurance that it will be readily salable on the open market, (citations omitted).
The word “merchantable” implies something less than a perfect title and permits of defects which are not I ^/reasonably liable to result in assault. 352 So.2d at 388 quoting from Roberts v. Medlock, 148 So. 474, 476 (La. App. 2[d] Cir. 1933). (emphasis supplied)

558 So.2d at 1328-29.

As Appellants emphasize, the party who seeks to demonstrate that a title is unmerchantable has the burden of proof at trial. Langford Land, 352 So.2d at 388 (holding that “where one seeks to demonstrate that a title is unmerchantable as suggestive of litigation, he bears the burden of proof, as in any other usual litigation.”). Here, Mr. Scurlock, as the party seeking to demonstrate the Property was unmerchantable, had the burden of proof. The trial court found he satisfied that burden. In so finding, the trial court noted that “[t]he alleged encroachments totaled to an amount of .006% of the entire 18,000 square feet of the property.” The trial court, nonetheless, determined that “Dr. Ditta’s property was not merchantable because the fence encroached, in some places up to twenty-four inches, onto the adjoining private properties,” and Dr. Ditta’s attempt to execute valid boundary agreements with the neighboring property owners to cure the fence encroachments was insufficient.

Mr, Scurlock contends that the trial court correctly held that Dr. Ditta’s title to the Property was unmerchantable on the closing date because, as of that date, there was a fence encroachment—“a substantial wrought-iron fence, set in concrete, encroached onto three neighboring properties as much as two feet.” Indeed, he emphasizes that Dr. Ditta had previously filed an undisclosed boundary action involving her property line—the 2005 Lawsuit, and both she and her 11srieighbor claimed ownership of the same land. As of the closing date, the 2005 Lawsuit was unresolved. Continuing, Mr. Scurlock contends that Dr. Ditta attempted, but failed, to resolve the fence encroachment issues by entering into boundary agreements with the neighbors on three sides of her property. Those three boundary agreements were defective and did not adequately resolve the encroachments for a number of reasons, including the following three:

(a) The boundary agreement concerning [Dr.] Ditta’s uptown-side/western neighbor (i.e. the same property involved in the 4S Investments lawsuit) was defective in a number of respects, including that none of the condominium unit owners had executed the boundary agreement. Rather, a non-unit owner executed a boundary agreement on behalf of the condominium association, which had no ownership interest in the property;
(b) [Dr.] Ditta had not presented sufficient evidence regarding ownership of the neighboring properties onto which ' [Dr.] Ditta’s fence encroached; and
(c) There were multiple judgments and other creditors and mortgage companies that held mortgages on the adjacent properties. It was necessary for [Dr.] Ditta’s neighbors’ creditors and mortgage holders to sign off on the boundary agreements through a release or subordination; otherwise, if a foreclosure were to occur, it would void a given boundary agreement. Accordingly, [Dr.] Ditta’s title was unmerchantable on the closing date.

In finding the Property was not merchantable, the trial court, agreeing with Mr. Scurlock’s contentions, cited the following three factors: (i) “there were other creditors and mortgage companies that held mortgages on adjacent properties ... [who] were not privy to any boundary agreement;” (ii) “questions ... existed regarding the agreements with the neighboring condo[minium] association;” and (iii) the 2005 Lawsuit was never resolved. We separately address each category.

|1fiAs to the first factor, the trial court reasoned that the boundary agreements were insufficient because there were other mortgages and encumbrance on the adjoining properties. The trial court further reasoned that “[t]he creditors were not privy to any boundary agreement and the Court finds that it was necessary for these creditors and mortgage holders to approve the boundary agreements through either a release or subordination.” Appellants contend that the trial court erred in finding the creditors or mortgage companies needed to approve the boundary agreements through a release or subordination. We disagree.

As Mr. Scurlock points out, two of the three adjoining properties had first-ranking mortgages or encumbrances. He further points out that there is no evidence in the record that “[Dr.] Ditta, or anyone else acting on Ditta’s behalf ever attempted to obtain releases or subordinations of the various mortgages and encumbrances.” Mr. Scurlock’s expert, Shaun B. Rafferty, testified that the fence encroachment issues were not adequately resolved given the existence of several mortgages and encumbrances that primed the boundary agreements. He thus stated that “[i]t doesn’t do any good to get an owner to sign a waiver if you don’t get his mortgage company to do it.”

The second factor is the problems with the condominium boundary agreement. On this issue, the trial court reasoned that “there were questions as to whether the condo[minium] association followed its own internal rules on how the |17condo[minium] owners could assign their rights (to execute the boundary agreement with Dr. Dit-ta) over [to] the condo[minium] association President.” The trial court thus noted that it had “concerns with whether the condominium agreement was valid.” Appellants contend that it is unknown why the condominium unit owners could not authorize the association’s president, Ms. Gladden, to execute the condominium boundary agreement.

At trial, Mr. Rafferty opined that there were numerous deficiencies, including form and authority, regarding the condominium boundary agreement. The first deficiency he noted was that the condominium’s documents limited membership in the condominium association only to owners of the condominium units and required that the association’s president be an association member. Ms. Gladden, who signed the boundary agreement as the association’s “president,” admittedly was not a condominium unit owner and thus not an association member; she was only a spouse of a unit owner, Mr. Gladden. Mr. Rafferty explained that corporate law does not apply here. Mr. Rafferty thus testified that “[i]f I’m trying to set aside this boundary agreement I’m going to hang my hat on the fact that the resolution named her as the president and she wasn’t the president.”

Another deficiency Mr. Rafferty noted regarding the condominium boundary agreement was that it was executed by the wrong party—the condominium association. He explained that under the condominium declaration, “the common elements are owned in in division by the individuals.” He thus opined that each of the four condominium unit owners were required to execute his or her own boundary agreement with regards to his or her undivided percentage interest in the common elements.

| ^Disagreeing, Appellants’ expert (Mr. Person) testified that the condominium association owned the common elements and that the condominium association, as oppose to an individual unit owners, was the proper party to enter into the boundary agreement. He explained that “once the condominium regime is created then owners have relinquished their right and interest to separately act as to the condominium property.” The conflicting expert testimony on this issue was for the trier of fact to resolve. We cannot conclude the trial court was erroneous in finding there were questions regarding the validity of the condominium boundary agreement.

The third and final factor is the 2005 Litigation. On this issue, the trial court’s finding was as follows:

In addition, the boundary Dr. Ditta shared with the neighboring condominium units had a previous lawsuit that was never disclosed to [Mr.] Scurlock. ... And although the 2005 lawsuit was abandoned three years later [by virtue of the application of La. C.C.P. art. 561], any purchaser of the property could potentially be buying himself or herself a lawsuit as that boundary dispute was never resolved. The fact that the fence encroachment actually resulted in previous litigation and that a valid boundary agreement was never executed, the Court concluded that Dr. Ditta never delivered merchantable title to [Mr.] Scurlock.

Appellants contend the trial court erred in finding a legally abandoned lawsuit—the 2006 Lawsuit—presented an unresolved issue with respect to the Property’s title. According to Dr. Ditta’s testimony the 2006 Lawsuit arose after 4S Investments tore down the wooden portion of her fence that was built along the boundary between the two properties. Sometime after suit was filed, 4S Investments rebuilt the wooden portion of the fence in harmony with Dr, Ditta’s | ^original wrought-iron fence and chain wall that has been in existence on the boundary since at least 1928. After 4S Investments rebuilt the wooden portion of the fence between the two properties, Dr. Ditta testified that she informed her attorney that she no longer wanted to pursue the suit; she thus believed the 2006 Lawsuit had been dismissed. Appellants also emphasize that the trial court, in its reasons for judgment, found the 2005 Lawsuit was legally abandoned in 2008, yet simultaneously suggested that “the boundary dispute was never resolved.” Appellants contend that the trial court “erroneously believed that any purchaser of the subject property could potentially be buying a lawsuit in regards to this issue proposed in the abandoned lawsuit.”

Conversely, Mr. Scurlock contends, that the existence of the fence encroachments was not only “reasonably suggestive of litigation,” but also had resulted in litigation—the 2005 Lawsuit over the Property’s boundary. According to Mr. Scurlock, the very fact that Dr. Ditta filed a boundary action concerning the Property rendered her title unmerchantable until a final resolution of that boundary action and her encroachments onto her neighbors’ property. Mr. Scurlock points out that in the 2005 Lawsuit, the defendant-neighbor answered the suit by claiming ownership of the property in dispute (the area onto which Dr. Ditta had encroached). Hence, both’ Dr. Ditta and her neighbor claimed ownership of the same land. Mr. Scurlock notes that the Civil District Court of New Orleans record of the 2005 Lawsuit reflects that the case has never been resolved. We find no error in the trial court’s finding that “[t]he fact the fence encroachments actually resulted in previous litigation and that a valid boundary agreement was never . executed” supports a finding that the title was ■not merchantable.

laoln sum, we find no error in the trial court’s reliance on the above three factors to support its finding that title to the Property was not merchantable on the date of the closing. All three factors support a finding that there were fence encroachments remaining on the Property as of the closing date. “Encroachments are held to be suggestive of litigation. When improvements or fences encroach a neighboring property, or when improvements or fences on neighboring property encroach on the property sold, the title is unmer-chantable because it is suggestive of litigation (Young v. Stevens, 252 La. 69, 209 So.2d 25 (1967); Morrison v. Fineran, 397 So.2d 838 (La. Ct. App. 4th Cir. 1981)) even if the encroachments are rather small. Clesi, Inc. v. Quaglino, 137 So.2d 500 (La. Ct. App. 4th Cir. 1962).” 1 Peter S. Title, LA. PRAC. REAL EST. § 9:65 (2d ed. 2016). “This rule is justified, as the Supreme Court enunciated in Young v. Stevens, 252 La. 69, 209 So.2d 25, 28 (1967), on the ground that peace of mind is in itself cause of an agreement to purchase property, and no one relishes the prospect of a suit with one’s neighbor.” Id.

On a different note, Appellants contend that the trial court erred in failing to admit and consider evidence of “salability” of the Property, which they contend is another factor to be considered in determining merchantability. Appellants note that the trial court refused to allow them to introduce nearly a century of yalid sale agreements and mortgages related to the Property; however, they proffered the evidence showing over ten different sales of the Property.

To establish salability, Appellants also introduced evidence at trial that the Property was sold to a third party, Mr. Dean, less than two years after Mr. Scurlock’s alleged breach of the Agreement. They stress that the Property was sold to Mr. Dean without any further curative efforts to the title being made. Appellants | ¾1 also point out that Mr. Dean was able to obtain title insurance and a mortgage on the Property and that he has peacefully owned the Property since he purchased it from Dr. Ditta in 2015. Appellants contend that the trial court erred in failing to take judicial notice of the lack of any lawsuits against Mr. Dean since he purchased the Property. See La. C.E. Art. 201 (providing for the taking of judicial notice of adjudicative facts generally).

Finally, Appellants proffered an email from a senior underwriter at First American Insurance company, which stated “[a]f-ter a review of the surveys provided, I am willing to authorize the issuance of an owner’s policy without' exception to the de minimus encroachments on the 3711 St. Charles property.”

The gist of Appellants’ argument is that the trial court erred in failing to consider the evidence of salability and insurability of the Property. Appellants’ reliance on the concepts of salability and insurability is misplaced. The narrow issue is merchantability. The jurisprudence, as a commentator points out, has held that a merchantable title is distinguishable from insurable title. 1 Peter S. Title, LA. PRAC. REAL EST. § 9:62 (2d ed. 2016); this distinction is explained as follows:

A merchantable title imposes a higher standard than an insurable title. A title insurance policy is not equivalent to a merchantable title in Louisiana; title insurance is an agreement by an insurer to satisfy claims against the property. The purchaser is entitled not only to the protection of indemnity against claims, but also against claims being made. Makofsky v. Cunningham, 576 F.2d 1223 (5th Cir. 1978). Furthermore, a title insurance policy is limited in coverage to the amount stated on its face, and would not protect the purchaser in the event of loss suffered in excess of this sum. This could easily occur if the purchaser made improvements on the property, or if the land or improvements increased in value over the years. However, parties sometimes agree that the purchaser can be compelled to accept a title that is insurable for the full amount of the purchase price without exception by a title insurance company, regardless of whether the title would be deemed “merchantable” under law.

| By extension, the same principles apply, and distinguish, a salable title from a merchantable one. Again, the narrow issue is merchantability, not salability or insurability.

In. conclusion, the record supports the trial court’s factual finding that the title was not merchantable on the date of the closing given the existence of fence encroachments. Given the evidence presented at trial, we find the record supports the trial court’s implicit factual finding that there was sufficient danger of litigation and enough uncertainty as to what the buyer—Mr. Scurlock—would receive by the. conveyance to justify the buyer’s refusal to close the transaction; and this was a failure of the seller—Dr. Ditta—to deliver merchantable title at closing. Indeed, Mr. Scurlock’s expert, Mr. Rafferty, testified that he would have raised the same exact issues regarding merchantability of the ti-tie to the Property that Mr. Potts raised in his title commitment regarding the fence encroachments and that he would have provided his client with the same information and advice as Mr. Potts provided Mr. Scurlock—that the Property was not merchantable due to the fence encroachments. According, we find no manifest error in the trial court’s finding that Dr. Ditta failed to deliver merchantable title on the date of the closing.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . In 2005, Dr. Ditta filed a boundary action against one of her neighbors. As the trial court noted in its reasons for judgment, Dr. Ditta "testified that a dispute arose between her and her neighbor [apparently 4 S Investments, LLC] when that neighbor tore down the fence that separated the two properties. [Dr.] Ditta responded by filing a boundary action against her neighbor, who was developing condominiums on the property at the time.” At the time of trial, the 2005 Lawsuit had not been dismissed.

      . On August 9, 2013, the Amelia Street boundary agreement was executed; Dr. Ditta paid the owner $1,000. On August 19, 2013, the Peniston Street boundary agreement was executed; Dr. Ditta paid the owner $2,000. The St. Charles Avenue boundary agreement—also referred to as the condominium boundary agreement—was executed on August 20, 2013. The owners of the four units each executed documents authorizing the condominium association’s president, Paula Gladden, to enter into the boundary agreement on his or her behalf. The trial court noted that "[t]he agreement between Dr. Ditta and the condo association also prevented the condo owners' heirs (and assigns) to waive any future attack on the property’s boundary line.” Dr. Ditta paid the condo association $2,838.

      .Appellants’ assignments of error are as follows:
      1. The District Court’s ruling effectively nullifies the cause of action of anticipatory breach despite decades of well-established jurisprudence.
      2. .The District Court erred in ruling that Dr. Ditta’s performance under the Purchase Agreement was necessary in order for Mr. Scurlock’s August 18, 2013 e-mail to be sufficient for an anticipatory breach.
      3. The District Court erred in ruling that Mr. Scurlock did not anticipatorily breach the Purchase Agreement.
      4. The District Court erred in' ruling that Mr. Scurlock was not in breach of the Purchase Agreement when he failed to attend the Act of Sale.
      5. The District Court erred in ruling that Mr. Scurlock carried his burden of proof in establishing that the title to the subject property was not merchantable.
      6. The District Court erred in ruling that the boundary agreements were not valid. "
      7. The District Court erred in ruling that the title to the subject property was reasonably suggestive of future, serious litigation from third parties of substantial nature,
      . 8. The District Court erred, in effectively ruling that the title must be perfect title.
      9. The District Court erred when it failed •to admit and consider evidence of the hundreds of years of salability and mortgagability of the subject property.
      10. The District Court erred when it failed to take judicial notice of the non-existence of any litigation with regards to the boundaries of subject property.
      11.- The District Court erred in ruling that Mr. Scurlock was entitled to the $100,000 deposit and no damages • were owed under the Purchase Agreement.

        . See Andrew Development Corp. v. West Es

        planade Corp., 347 So.2d 210, 212-13 (La. 1977) (holding that "[w]here a party refuses and does not merely fail or neglect to comply with his contractual obligation, his refusal constitutes an active breach of the contract, which relieves the other party of the obligation of continuing to perform under the contract.”), sea also Ringel & Meyer, Inc. v. Falstaff Brewing Corp., 511 F.2d 659, 660 (5th Cir. 1975) (noting that "[t]he concept of anticipatory breach is an alien engraftment upon Louisiana’s essentially civil-law system.”).

      . See also Restatement (Second) of Contracts § 256(1) (1981) (providing that an anticipatory repudiation may be "nullified by a retraction of the statement if notification of the retraction comes to the attention of the injured party before he materially changes his position in reliance on the repudiation or indicates to the other party that he considers the repudiation to be final”).

      . Although Humble suggests it is a resolutory condition, the dissent in the Humble case voiced a different view. Humble, 245 La. at 511, 159 So.2d at 136 (McCaleb, J., dissenting) (noting that "[t]his is patently a suspen-sive condition, which is defined by Article 2043 of the Civil Code, inter alia, as one depending on a future and uncertain event.”); see also Bielawski v. Landry, 397 So.2d 861 (La. App. 4th Cir. 1981) (holding that the obligation to produce a merchantable title under a Buy-Sell Agreement was a suspensive condition); Schroeder v. Krushevski, 186 So.2d 640, 643 (La. App. 4th Cir. 1966) (holding that "by the terms of the contract his delivery of a merchantable title was a suspen-sive condition”).

      . Regardless, we review judgments, not reasons for judgment. State through Dep't of Children & Family Servs. Child Support Enf't, 16-0979, p. 24, 216 So.3d 130, 139.

      . In connection with the Purchase Agreement, Dr. Ditta, as the seller, completed a disclosure statement. One of the questions on the disclosure statement was "[i]s there any pending litigation regarding the property? Although Dr. Ditta originally checked "yes,” she crossed it out and changed her answer to "no.” Shortly before the original closing date, Mr. Potts discovered the undisclosed 2005 Lawsuit. In his July 25, 2013 email to Dr, Ditta's attorney, Mr. Potts expressly mentioned the 2005 Lawsuit.

      . At trial, both Mr. Scurlock and Dr, Ditta presented an expert in the areas of title examination and merchantability of title to immovable property in the New Orleans, Louisiana area. The trial court qualified both Mr. Rafferty, Mr. Scurlock’s expert, and Eric O. Person, Dr. Ditta’s expert, as experts in those areas. Mr. Person testified that a ‘‘smell” test applies to determine merchantability. Mr. Rafferty testified that he would have raised the same exact issues regarding merchantability of the title to the Property that Mr. Potts raised in his title commitment and that he would have provided his client with the same information and advice as Mr. Potts provided Mr. Scur-lock—that the Property was not merchantable on the date of the closing.

      . Article 561 provides that a suit "is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” La. C.C.P. art. 561 A(l). It further provides that "[t]his provision shall be operative without formal order” La. C.C.P. art. 561 A(3).