author: GRAVOIS, J.

text:
    FASHION PLANTATION ESTATES PROPERTY OWNERS ASSOCIATION v. Albert SIMS, Jr. and Gilda Harang Sims
    NO. 16-CA-237
    Court of Appeal of Louisiana, Fifth Circuit.
    December 21, 2016
    COUNSEL FOR PLAINTIFF/APPELLANT, FASHION PLANTATION ESTATES PROPERTY OWNERS ASSOCIATION, Louis G. Authement
    COUNSEL FOR DEFENDANT/AP-PELLEE, ALBERT SIMS, JR. AND GILDA HARANG SIMS, Clarence J. Roby, Jr.
    Panel composed of Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst
   GRAVOIS, J.

_JjPlaintiff/appellant, Fashion Plantation Estates Property Owners Association (“the Association”), appeals a trial court judgment that denied its petition for a permanent injunction and found that defendants/appellees, Albert and Gilda Sims (“the Sims”), were not in violation of the subdivision’s restrictive covenants. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

The Sims own a home in the Fashion Plantation Estates Subdivision located in Hahnville, Louisiana. Their property, as well as all property in the subdivision, is subject to restrictive covenants recorded in the St. Charles Parish conveyance records. The Association is responsible for enforcing the covenants. The original covenants, recorded on February 26, 1999, provide, in pertinent part:

8. Temporary Structures:
Parking or temporary storage of boats, campers, etc. will not be permitted in front of any homes.

By act recorded on June 11, 2010 in the St. Charles Parish conveyance records, the covenants were amended. The amended covenants provide, in pertinent part:

11. Parking
... Parking or temporary storage of boats, campers, recreational vehicles, trailers, etc. will not be permitted in front of any homes. Also, such items will not be permitted within 100 feet from the edge of any street unless it is parked behind a six-foot privacy fence or in a garage.

In 2004, the Sims purchased a boat, and since that time, have parked it in their driveway, next to the garage door, and in front of a portion of their home. On April 7, 2015, Vincent Comberrel, the Association’s Vice-President and Treasurer, sent the Sims an informal notification advising them that they were in violation of Paragraph 11 of the amended covenants because their boat was parked “in front of |a[their] property.” In the notification, the Sims were informed that they had until April 10, 2015 to remove the boat from the front of their property or formal action would be imposed. When the Sims failed to comply with the Association’s informal request, Mr. Comberrel sent them formal notification on behalf of the Association via letters dated April 13, 2015, April 21, 2015, and May 15, 2015 that they continued to be in violation of Paragraph 11 of the amended covenants, and that if they did not remove their boat from the front of their property, the Association would implement the enforcement provision of the covenants and impose an assessment fee of $15.00 per day until the violation was corrected, plus costs and attorney’s fees.

The Sims continued to ignore the Association’s requests, and thus, on August 5, 2015, the Association filed a petition for permanent injunction pursuant to La. C.C. art. 779 in the 29th Judicial District Court, seeking to permanently enjoin the Sims from violating Paragraph 11 of the amended covenants. The Association prayed that the Sims pay a $15.00 daily fine and all costs incurred in connection with the Association’s enforcement of the covenants, including attorney’s fees.

On August 17, 2015, the Sims answered the petition for permanent injunction, denying the ciatos made in the petition, and arguing that the covenants were improperly amended in 2010 and that their property is only subject to the original covenants.

A bench trial on the permanent injunction was held on December 4, 2015. At trial, Mr. Comberrel testified that the Sims’ boat is parked in front of their home, is only 54½ feet from the street, and is not behind a six-foot privacy fence, and thus, they are in violation of both Paragraph 8 of the original covenants and Paragraph 11 of the amended covenants. Three photographs of the front of the |shome were submitted into evidence depicting the location of the boat. Mr. Comberrel testified that the pictures reveal that the boat is parked in front of a portion of the house that faces the street. He stated that it was his opinion that the portion of the house that the boat is parked in front of is part of the front of the home.

Mr. Comberrel further testified that the purpose of Paragraph 11 of the covenants is “to maintain the value of the properties by, by continuing them to look like a, uh, a property subdivision and not some junkyard or whatever else might be put in front of their homes.” He testified that there had been other instances where boats, trailers, or campers had been parked the way Mr. Sims parked his boat, and in those instances, the individuals were sent a notice of the violation, were given time to correct it, and corrected the violation.

Mr. Sims admitted that his boat is parked in the driveway in front of a portion of his house that faces the street. He described the boat as being on the “side of [his] house where the garage is.”

Following the trial, both parties submitted post-trial memoranda. In their memorandum, the Sims argued that a legal definition, not a literal interpretation of what constitutes the front of the Sims’ property, should be applied. In its post-trial memorandum, the Association argued that the covenants are properly recorded, the boat is parked in front of the home, and the Sims have violated the covenants “to the detriment of the overall scheme of uniformity of planning and development governing the subdivision and to the detriment of the other property owners.”

On February 4, 2016, the trial court issued a judgment in favor of the Sims. In its written reasons for judgment, the trial court found that Paragraph 8 of the original covenants is vague and ambiguous. The trial court found that “[n]othing in the covenants defines ‘in front of,’ and the covenants do not otherwise employ the term ‘front’ in such a way that ‘in front of in Paragraph 8 could be interpreted |4in relation to other provisions of the covenants.” The trial court went on to note that while the Association contends that the portion of the structure that juts out past the garage constitutes the “front” of the home, as supported by the testimony of Mr. Comberrel, this may not be the “opinion” of other laymen who may view the Sims’ home. The trial court stated that this finding is supported by the testimony of Mr. Comberrel, who testified that the covenants were amended in 2010 because several of them were ambiguous and needed explanation. Accordingly, the trial court found that the placement of the Sims’ boat on the side of the home in front of the garage door did not violate the original 1999 restrictive covenants.

The trial court also found that the 2010 amendments to the covenants were not effective as to the Sims. It noted that the original covenants set a term of 25 years and a method thereafter for their continuation and modification. The trial court found that the original covenants were recorded on February 26, 1999, and thus, had not been in effect for the 25-year term, such that they could be amended in 2010.

This timely appeal followed.

ASSIGNMENT OF ERROR NUMBER ONE

In its first assignment of error, the Association argues that the trial court erred in finding Paragraph 8 of the original covenants to be vague and ambiguous. The Association argues that in plain and simple terms, Paragraph 8 prohibits the parking of a boat in front of a home. The Association contends that the pictures , of the home submitted into evidence reveal that there are multiple front walls of the Sims’ house, staggered at varying distances, but all integrated into one architectural pattern by vertical arrangements- of decorative inlays on each of the home’s front walls. This includes the part of the home that the boat is parked in | ¡ffiont of; therefore, the Association argues, the evidence supports a finding that the boat is parked in front of the home.

Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses and improvements. La. C.C. art. 775. Doubt as to the existence, validity or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. La. C.C. art. 783. Building restrictions are to be strictly construed. Cashio v. Shoriak, 481 So.2d 1013 (La. 1986). However, the provisions of the Louisiana Homeowners Association Act, La. R.S. 9:1141.1, et seq., supersede the Civil Code articles on building restrictions in the event of a conflict. La. C.C. art. 783. Regarding interpretation of building restrictions on property regulated by a homeowners association, La. R.S. 9:1141.4 provides that “[t]he existence, validity, or extent of a building restriction affecting any association property shall be liberally construed, to give effect to its purpose and intent” (Emphasis added.) See also Fern Creek Owners’ Ass’n v. City of Mandeville, 08-1694 (La.App. 1 Cir. 6/30/09), 21 So.3d 369, 377.

In the present case, Paragraph 8 of the original covenants states, in pertinent part: “Parking or temporary storage of boats, campers, etc. will not be permitted in front of any homes.” (Emphasis added.) As the trial court properly pointed out, “in front of’ is not defined in the covenants, and “the covenants do not otherwise employ the term ‘front’ in such a way that ‘in front of in Paragraph 8 could be interpreted in relation to other provisions of the covenants.”

At trial, the Association attempted to clarify the meaning and extent of “in front of’ as it related to the restriction. Pictures submitted into evidence showed that there are multiple front walls of the Sims’ house, staggered at varying distances, but all integrated into one architectural pattern by vertical arrangements of decorative inlays on each of the home’s front walls, and that the home’s garage |fidoor opens towards the side of the home. The boat is shown as being parked next to the garage door (between the garage door and the side line of the lot), but in front of the farthest to the right wall of the home that faces the street with a decorative inlay. Mr. Comberrel testified that the boat rested in front of a portion of the house that faces the street, and it was his opinion that anything facing the street would be considered the front of the house. Mr. Comberrel testified that there were no other homes in the subdivision that had boats parked in the same manner as the Sims. When asked about the purpose of the amended parking restriction, Mr. Comberrel testified that it was to “maintain the value of the properties by, by continuing them to look like a, uh, a property subdivision and not some junkyard or whatever else might be put in front of their homes.”

The trial court held that the restriction in question was vague and ambiguous, and as such, it must be interpreted against the developer and in favor of the. Sims’ property. However, upon review, we find that the trial court .erred when it failed to properly consider and apply the provisions of La. R.S. 9:1141.4 of the Louisiana Homeowners Association Act. In a footnote to its written reasons for judgment, the trial court acknowledged the existence of the Louisiana Homeowners Association Act; however, it failed to consider the application of this law because “the Association did not offer any evidence at the trial to show the intent of RJM Enterprises [sic] as to, or the purpose of, Paragraph 8.”

|7We find, however, that through Mr. Comberrel’s testimony at trial, it was shown that the purpose and intent behind the parking restriction was to maintain the value of the property “by continuing them to look like a, uh, a property subdivision and not some junkyard or whatever else might be put in front of their homes.”

As set forth above, regarding interpretation of building restrictions on property regulated by a homeowners association, La. R.S. 9:1141.4, provides that “[t]he existence, validity, or extent of a building restriction affecting any association property shall be liberally construed to give effect to its purpose and intent.” (Emphasis added.) See also Fern Creek Owners’ Ass’n, supra. Therefore, pursuant to La. R.S. 9:1141.1, we find that to liberally construe “in front of’ as used in Paragraph 8 of the original covenants to give effect to the Association’s purpose and intent, it must be interpreted to mean that the area where the Sims’ boat was parked — next to the garage door (between the garage door and the side line of the lot), but in front of the farthest to the right wall of the home that faces the street with a decorative inlay — is “in front of’ the Sims’ home. Accordingly, we ñnd that the trial court was manifestly erroneous and clearly wrong in finding that the Sims’ boat was not parked “in front of’ the Sims’ home.

Considering our findings above, we reverse the trial court’s judgment under review and remand the matter to the trial court for issuance of an injunction permanently prohibiting the Sims from violating Paragraph 8 of the original covenants, and for a determination by the trial court as to whether the Sims should be assessed “legal and related filing fees” associated with the Association’s enforcement of the restrictive covenants.

^ASSIGNMENT OF ERROR NUMBER TWO

The Association argues in its second assignment of error that the trial court erred in finding the amendments to the covenants are not effective as to the Sims. The Association argues that should this Court deny its first assignment of error, the Association would have to rely on the amendments to the covenants to contend that the boat is not parked at least 100 feet from the edge of the street and is not parked behind a six-foot privacy fence or in a garage. However, considering our findings above, this assignment of error is moot.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s judgment under review and remand the matter to the trial court for issuance of an injunction permanently prohibiting the Sims from violating Paragraph 8 of the original covenants, and for a determination by the trial court as to whether the Sims should be assessed legal and related fees associated with the Association’s enforcement of the restrictive covenants.

REVERSED AND REMANDED

      . The record reflects that this letter was never delivered to the Sims.

      . Specifically, the trial court’s reasons for judgment provided the following regarding the Louisiana Homeowners Association-Act, to-wit:
      At the time of the original 1999 Restrictive Covenants the law provided that building restrictions were .strictly construed in favor of the property owner’s free use of his property. Subsequent to the original covenants, the Legislature enacted the Louisiana Homeowners Association Act enacted as La. Rev. Stat. §§ 1141.1, et seq. The Act changed .the law and provides that the “existence, validity, or extent of a building restriction .,. shall be liberally construed to give effect to its purpose and intent,” The Court does not find it necessary to determine whether or how the change in interpretation would affect already existing ambiguous covenants because the Association did not offer any evidence at the trial to show the intent of RJM Enterprises [sic] as to, or the purpose of, Paragraph 8.

      . The enforcement provision, contained in Paragraph 20 of the original covenants, provides:
      Enforcement shall be by legal proceedings and/or in equity against any person or persons violating or attempting to violate any covenant either to restrain violation or to recover damages, Residents violating these restrictions will be responsible for any legal and related fees associated with the enforcement of said restrictions. Property liens will be placed on owners violating these covenants for all legal and related filing fees.


source: Caselaw Access Project

author: LILJEBERG, J.

license: Public Domain

text:
    Rafael GARCES-RODRIGUEZ and Julio Alonso v. GEICO INDEMNITY COMPANY, Progressive County Mutual Insurance Company (Garces) and Progressive County Mutual Insurance Company (Paez)
    NO. 16-CA-196
    Court of Appeal of Louisiana, Fifth Circuit.
    December 21, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, RAFAEL GARCES-RODRI-GUEZ AND JULIO ALONSO, Ivan A. Orihuela
    COUNSEL FOR DEFENDANT/AP-PELLEE, PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY, Charles V. Giordano, Michael E. Escudier
    Panel composed of Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg
   LILJEBERG, J.

1 plaintiffs appeal the trial court’s judgment, granting the motion for summary judgment filed by one of the defendant insurers and dismissing it from this lawsuit. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred in Jefferson Parish on September 30, 2010. Plaintiffs, Rafael Garces-Rodriguez and Julio Aonso, contend that they were traveling westbound on Interstate 10 in a 1996 Kenworth truck owned by Jose Paez, when their vehicle was struck from behind by a 2004 Toyota Tacoma owned and operated by Christopher Anderson.

On September 28, 2012, plaintiffs filed this lawsuit seeking compensation for their personal injuries and other damages, naming GEICO Indemnity Company and Progressive County Mutual Insurance Company (“Progressive”) as defendants. In their petition, plaintiffs assert that at the time of the accident, both Mr. Garces-Rodriguez and Mr. Paez were insured by Progressive. They claim that them Progressive automobile insurance policies provided uninsured/underinsured motorist (“UM”) coverage for the damages they sustained.

On January 7, 2015, Progressive filed a motion for summary judgment, seeking dismissal of plaintiffs’ claims against it on the grounds that UM coverage was rejected for both of the relevant Progressive insurance policies. It argues that both Progressive policies were issued in Texas and that Texas law should apply in this matter. Progressive asserts that under Texas law, the rejection of UM coverage forms signed by Mr. Garces-Rodriguez and Mr. Paez are both valid and exclude coverage for plaintiffs’ UM claims.

Plaintiffs filed a memorandum in opposition to Progressive’s motion for summary judgment, asserting that Louisiana law should apply in this matter and that the UM rejection forms signed by Mr. Garces-Rodriguez and Mr. Paez are ^invalid under Louisiana law. They argue that the Progressive policies provide UM coverage for plaintiffs’ damages because there was no valid rejection of UM coverage.

Progressive’s motion for summary judgment came before the trial court for a hearing on March 2, 2015. At the conclusion of the hearing, the trial court granted the parties additional time to submit mem-oranda and took the matter under advisement. On April 20, 2015, the trial court signed a judgment granting Progressive’s motion for summary judgment. In its reasons for judgment, the trial court found that Louisiana law applies in this matter, and that the UM coverage rejection forms signed by Mr. Garces-Rodriguez and Mr. Paez were sufficient to effect a valid rejection of UM coverage under Louisiana law. Plaintiffs appeal.

LAW AND DISCUSSION

On appeal, plaintiffs assert that the trial court erred by granting Progressive’s motion for summary judgment, because the two relevant UM rejection forms are invalid under both Louisiana and Texas law. Plaintiffs argue that Louisiana law should apply, because Louisiana’s interests in this matter are more substantial and outweigh those of Texas. Plaintiffs contend that the only interest Texas has in this case is that the insurance policies in question were issued in Texas. They list several alleged interests of Louisiana in this case, including that: 1) the accident occurred in Louisiana; 2) the collision occurred between Louisiana residents; 3) plaintiffs received all of their medical treatment in | ^Louisiana; and 4) the two vehicles involved in the accident were registered and garaged in Louisiana.

Next, plaintiffs argue that the UM rejection forms are invalid under Louisiana law, because: 1) Neither of the UM selection forms complied with the form promulgated by the insurance commissioner as required by Louisiana law; 2) there are no initials on the UM selection forms indicating the selections of the insureds; 3) the names of the insureds and the name of the insurance company are not printed on the UM selection forms; 4) none of the exhibits attached to Progressive’s motion for summary judgment were certified copies of the insurance policy documents; and 5) Progressive failed to show that the relevant UM selection forms were part of the two Progressive liability policies at issue.

Progressive responds that the trial court properly granted summary judgment in its favor. However, Progressive maintains that Texas law applies in this matter. It claims that Texas has a greater interest than Louisiana in enforcing its policies, because: 1) the vehicles insured under the policies were both garaged in Texas; 2) the policies were issued in Texas; and 3) the insureds resided in Florida, not Louisiana. They further contend that the UM rejection forms are both valid and enforceable, pursuant to Texas law.

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La.App. 5 Cir. 11/29/11), 78 So.3d 849, 852. On review of a motion for summary judgment, we must determine if there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id. Whether an insurance policy provides or precludes coverage, as a matter of law, can be resolved within the framework of a motion for summary judgment. Gautreaux v. Dufrene, 04-970 (La.App. 5 Cir. 1/11/05), 894 So.2d 385.

La. R.S. 22:1295 (formerly designated as La. R.S. 22:680) requires that all automobile liability policies delivered or issued for delivery in Louisiana include UM coverage unless the insured expressly rejects such coverage or chooses a lower limit. In Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773, the Louisiana Supreme Court recognized that Louisiana’s UM statute is applicable to policies “delivered or issued for delivery in this state” and held that Louisiana law does not automatically apply to the interpretation of a foreign UM insurance policy in a multi-state case where an accident occurs in Louisiana and involves a Louisiana resident. Rather, the Court stated that in a multistate case, the appropriate starting point is to determine if there is a difference between Louisiana’s UM law and the UM law of the foreign state. If so, the Court should conduct a choice of law analysis, as set forth in La. C.C. arts. 3515 and 3537, to determine which state’s law applies to the interpretation of the UM policy, Champagne, 893 So.2d at 786.

La. C.C. art. 3515, found within the general provisions governing conflict of laws in the Louisiana Civil Code, provides as follows:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in light of: 1) the relationship of each state to the parties and the dispute; and 2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

La. C.C. art. 3537, regarding conflict of laws within conventional obligations, provides:

Except as otherwise provided in this Title, an issue of | r,conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in light of: 1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; 2) the nature, type, and purpose of the contract; and 3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.

The issue to be resolved under La. C.C. arts. 3515 and 3537 is which state’s policies would be most seriously impaired if its laws were not applied. Zuviceh v. Nationwide Ins. Co., 00-773 (La.App. 1 Cir. 5/11/01), 786 So.2d 340, 345, writ denied, 01-2141 (La. 11/9/01), 801 So.2d 373.

In Louisiana, there is a strong public interest in providing full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance. Henson v. Safeco Ins. Co., 585 So.2d 534, 537 (La. 1991). However, the Louisiana Supreme Court has found that other states have an interest in the regulation of the insurance industry conducting business within their borders and in the contractual obligations that are inherent parts thereof. Champagne, 893 So.2d at 788; Walker v. State Farm Mut. Auto. Ins. Co., 42,051 (La.App. 2 Cir. 4/4/07), 954 So.2d 847, 853. In Champagne, the Court indicated that the integrity of the contract is a substantial and real interest. The Court further stated “[t]he fact that Congress has allowed fifty states to have their own uniform system of regulations governing insurance strongly suggests this is a legitimate public purpose.” Champagne, 893 So.2d at 788.

In accordance with Champagne, supra, we must first determine whether there is a difference between Louisiana’s UM law and Texas’ UM law. Our preview of the applicable law in each jurisdiction reveals that there are several differences in the UM provisions. For instance, although Louisiana in La. R.S. 22:1295 and Texas in Tex. Ins. Code § 1952.101 both provide for UM coverage unless rejected by the insured in writing, Louisiana law contains several additional requirements for a rejection form to be valid. See Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 551. In Texas, although a rejection is required to be in writing, the statutes do not require a special procedure or special language for the writing. Ortiz v. State Farm Mut. Auto. Ins. Co., 955 S.W.2d 353 (Tex. App.-San Antonio 1997, pet. denied). Execution of a satisfactory written rejection in Texas requires only minimal effort by the insured. Id. Thus, we must conduct a choice of law analysis to ascertain which state’s law should apply to determine the validity of the UM rejection forms in this case.

The record before us reflects that the Progressive insurance policies issued to Mr. Garces-Rodriguez and Mr. Paez were Texas commercial automobile policies, and the insurance agent for each policy lists a Texas address. Mr. Garces-Rodriguez and Mr. Paez provided Florida addresses when obtaining their policies. While plaintiffs contend that the vehicles under each policy were garaged in Louisiana, the policies reflect that they were to be garaged in Texas. There is no showing in the record that Progressive was ever notified of any change in the location where either vehicle was to be garaged.

The accident happened in Louisiana and plaintiffs contend that all medical treatment was obtained in Louisiana. However, there is little information about medical treatment in the record. Mr. Garces-Rod-riguez testified in his deposition 17that he was treated at Kenner Therapy and Rehab in Louisiana for neck and shoulder pain.

Finally, plaintiffs assert that they are Louisiana residents. In his deposition, Mr. Garces-Rodriguez testified that he lived in St. Rose, Louisiana, prior to Hurricane Katrina, but he relocated to Florida after the storm. He testified that he has lived in Florida since 2005, though he came back to Louisiana in 2008 to work. When he came back to Louisiana to work, his family stayed in Florida. Mr. Garces-Rodriguez testified that Mr. Alonso is also from Florida, and he stayed with him in Louisiana when they came for work. He testified that he did not inform his insurer that he moved from Florida to Louisiana to work, because he never moved. He stated that he was living in Louisiana to work but his family and “everything I had” was in Florida. He also stated that his driver’s license was issued in Florida and that he still lives in Florida.

The courts of this state have considered choice of law questions involving UM coverage in different situations and have often found that the state where the insurance policy was issued had a more substantial interest in applying its laws than the state where the accident occurred. In Collins v. Downes, 11-1124 (La.App. 4 Cir. 1/25/12), 83 So.3d 1177, the Fourth Circuit was called to determine whether Louisiana law or Ohio law applied to the interpretation of an insurance policy. In Collins, the accident occurred in Louisiana, the plaintiff and the tortfeasor were from Louisiana, and the tortfeasor’s vehicle was garaged in Louisiana. However, the insurance policy providing UM coverage was issued in Ohio. Even though the accident occurred in Louisiana and involved Louisiana residents, the Fourth Circuit found that Ohio had a more substantial interest in the uniform application of its laws governing insurance contracts than Louisiana. Collins, 83 So.3d at 1183. See also Griffin v. Safeway Ins. Co., 12-1632 (La.App. 1 Cir. 7/29/13), 2013 WL 3947104, in which the First Circuit specifically agreed with the result in Collins.

In Rangel v. Vega-Ortiz, 16-146 (La.App. 3 Cir. 9/28/16), 200 So.3d 1013, the Third Circuit found that even though an automobile accident occurred in Louisiana, Georgia law would apply to determine UM coverage, where the policy was issued in Georgia to a Georgia resident with a Georgia driver’s license. In that case, although it was alleged that plaintiffs husband, Mr. Medina, who died in the accident, was a Louisiana resident, the Court noted that the vehicle’s presence in Louisiana, as well as Mr. Medina’s presence in Louisiana, were unclear in the record. Because the record established multiple contacts with Georgia, the Court found Georgia law applicable. Rangel, supra.

The First Circuit, in Wendling v. Chambless, 09-1422 (La.App. 1 Cir. 3/26/10), 36 So.3d 333, found that although an accident occurred in Louisiana, Mississippi had a more substantial interest than Louisiana in regulating an insurance case involving a Mississippi resident. In Wendling, the plaintiff worked in Louisiana and was regularly in the state, but he was a Mississippi resident who applied for and obtained insurance in Mississippi. The First Circuit found that Mississippi law should apply in that case, where the “application of Louisiana law to the insurance policy would result in the abrogation of a Mississippi contract.” Wendling, 36 So.3d at 339.

In Lee v. Sapp, 14-1047 (La.App. 4 Cir. 3/4/15), 163 So.3d 60, State Farm issued and delivered an insurance policy to the defendant in Florida where he resided. At some point, the defendant moved to Louisiana, and State Farm was aware that he had moved to Louisiana. Thereafter, the defendant was involved in an accident in Louisiana. The Fourth Circuit found that Florida law governed in |9the case, “because the contract was issued and delivered in Florida.” Lee, 163 So.3d at 64. See also Rios v. Pierce, 14-730 (La.App. 4 Cir. 1/7/15), 158 So.3d 856, writ denied, 15-256 (La. 4/17/15), 168 So.3d 404.

In the present case, applying the facts before us to the factors for determining choice of law set forth in La. C.C. arts. 3515 and 3537, we find that Texas has a more substantial interest in having its laws applied in this case than Louisiana. While Louisiana has a strong interest in promoting full recovery for innocent automobile accident victims, Texas has a real and substantial interest in regulating its insurance industry and insurance contracts. We note that one of the plaintiffs, Mr. Garcez-Rod-riguez, obtained his insurance policy in Texas, through a Texas insurance agency, and listed a Texas zip code as the location where the vehicle would be garaged. The record does not show that either Mr. Garces-Rodriguez or Mr. Alonso was a permanent resident of Louisiana; rather, Mr. Garces-Rodriguez testified that they were both from Florida but were in Louisiana to work. Considering these and the other factors discussed, along with the applicable law, we find that Texas’ policies would be more seriously impaired if its laws were not applied to determine if the rejections of UM coverage are enforceable in this case. Accordingly, we conclude that Texas law applies in this matter.

Applying Texas law, we find that the forms signed by Mr. Garces-Rodriguez and Mr. Paez were sufficient to validly rejected UM coverage under the Progressive policy. The form signed by Mr. Paez is entitled, “Rejection of Uninsured/Underin-sured Motorist Coverage,” and it provides, in pertinent part: “I have been offered Uninsured/Underinsured Motorist Coverage in an amount equal to the limits of Liability Coverage and I reject the option to purchase and | mUninsured/Underinsured Motorist Coverage.” The form signed by Mr. Garces-Rodriguez is an endorsement providing, in pertinent part: “You further agree that this endorsement will also serve as a rejection of Uninsured/Underinsured Motorists Coverage and Personal Injury Protection Coverage...” Both forms contain the typewritten name of the insured and the insurance policy number. These forms signed by Mr. Garces-Rodriguez and Mr. Paez are written in clear and express terms, indicating their intent to reject UM coverage.

Tex. Ins. Code § 1952.101 requires a rejection of UM coverage to be in writing, but it does not require a special procedure or specific language in order to be effective. See Ortiz, supra at 356. In the present case, we find that both rejections of UM coverage are valid pursuant to Texas law, and there is no UM coverage provided by the Progressive policies to plaintiffs in this matter. Accordingly, we find that the trial court was correct to grant summary judgment in Progressive’s favor, dismissing plaintiffs’ claims against it.

DECREE

For the foregoing reasons, we affirm the summary judgment granted in favor of Progressive, dismissing plaintiffs’ claims against it.

AFFIRMED

      . After this appeal was lodged and docketed in this Court, it was determined that the trial court's judgment of April 20, 2015 was deficient because it lacked the requisite decretal language. Particularly, while the judgment indicated that Progressive's motion for summary judgment was "granted,” the specific relief granted, i.e. dismissal of claims, could not be determined from the judgment itself. Consequently, pursuant to our supervisory jurisdiction, this Court ordered the trial court to amend its judgment to specify the relief granted.
      On November 7, 2016, the trial court amended its judgment. However, the amended judgment provides that the claims against Progressive filed by both defendants, not plaintiffs, were dismissed with prejudice. On December 5, 2016, noting that the amended judgment was not a final and appealable judgment and thus, our appellate jurisdiction was not properly invoked, this Court again ordered the trial court to amend its April 20, 2015 judgment to include the appropriate and necessary decretal language.
      On December 7, 2016, the trial :court signed a second amended judgment, providing that Progressive’s motion for summary judgment as to both plaintiffs is granted, and "the claims against Progressive filed by both plaintiffs dismissed with prejudice.” The record was supplemented with this final judgment on December 8, 2016.

      . Plaintiffs complain that the attachments to Progressive’s motion for summary judgment were not certified copies of the insurance documents. At the hearing on the motion for summary judgment, the trial judge allowed the plaintiffs to submit a late opposition to the motion for summary judgment. Based on plaintiffs’ opposition being untimely, the trial court allowed Progressive two weeks to file a reply to the opposition and noted that Progressive was permitted to submit certified copies of its exhibits along with its reply memorandum. We find no error in the trial court’s decision to allow Progressive to submit certified copies of its exhibits after the hearing.

      . In Lee, while the Court found that Florida law applied because the contract was issued and delivered in Florida, the Court also found that the terms of the contract issued by State Farm to defendant prevailed over Florida law. 163 So.3d at 64.


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

text:
    Alanda LEMINGS v. Jana SANASAC, Kiln Trucking, Inc., and State National Insurance Company
    2016 CA 0052
    Court of Appeal of Louisiana, First Circuit.
    December 22, 2016

      Heidi M. Vessel, Zachary, Louisiana, Counsel for Plaintiff/Appellee, Alanda Lemings
    Christopher G. Otten, Franklin D. Beahm, New Orleans, Louisiana, Counsel for Defendants/Appellants, Jana Sanasac, Kiln Trucking, Inc., and State National Insurance Company
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, j.j.
   McClendon, j.

|2In this personal injury suit, the defendants appeal a trial court’s judgment awarding damages for lost wages and loss of future earning capacity. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This matter arises from a two-vehicle accident that occurred on March 5, 2012, in Baton Rouge. The accident involved a 1998 Mack tractor-trailer truck driven by the defendant, Jana Sanasac, and a 2009 Toyota MTX driven by the plaintiff, Alanda Lemings. Ms. Lemings was stopped at a red light when she was rear-ended by the vehicle driven by Ms. Sanasac.

On February 27, 2013, Ms. Lemings filed a Petition for Damages against Ms. Sanasac; Kiln Trucking, Inc., Ms. Sana-sac’s employer; and State National Insurance Company, the defendants’ liability insurer. The defendants stipulated to liability prior to trial. After a trial on August 12, 2015, the trial court signed a judgment on August 28, 2015, in favor of Ms. Lemings, assigning 100% of the fault to the defendants. The trial court then made the following award of damages to Ms. Lemings:

The defendants have suspensively appealed, asserting in their sole assignment of error that the trial court erred in awarding $582,418.00 for Ms. Lemings’ lost wages and loss of future earning capacity. They assert that Ms. Lemings failed to introduce competent evidence establishing her entitlement to said damages. Therefore, according to the defendants, there is no reasonable factual basis to support the trial court's conclusion, and the finding is clearly wrong.

I «DISCUSSION

A plaintiff seeking damages for past lost wages bears the burden of proving lost earnings, as well as the duration of time missed from work due to the accident. Boyette v. United Services Auto. Assn., 00-1918 (La. 4/3/01), 783 So.2d 1276, 1279. The trial court is accorded broad discretion in assessing awards for past lost earnings, but there must be a factual basis in the record for the award. A plaintiff bears the burden of proving his claim for lost earnings. For purposes of determining damages, the amount of lost earnings need not be proved with mathematical certainty, but by such proof as reasonably establishes the claim, and such proof may consist only of the plaintiffs own testimony. Driscoll v. Stucker, 04-0589 (La. 1/19/05), 893 So.2d 32, 53. A trial court’s award for past lost wages is subject to the manifest error standard of review because such damages must be proven with reasonable certainty. Graham v. Offshore Specialty Fabricators, Inc., 09-0117 (La.App. 1 Cir. 1/8/10), 37 So.3d 1002, 1015.

With regard to a claim for loss of earning capacity, earning capacity refers to a person’s potential and is not determined by actual loss. Hobgood v. Aucoin, 574 So.2d 344, 346 (1990); Woods v. Hall, 15-1162 (La.App. 1 Cir. 4/20/16), 194 So.3d 689, 693-94. An award of loss of future income is not predicated merely upon the difference between a plaintiffs earnings before and after a disabling injury, but also encompasses the loss of one’s earning potential or capacity, that is the loss or reduction of a person’s capability to do that for which he is equipped by nature, training, and experience. David v. Our Lady of Lake Hosp., Inc., 02-1945 (La.App. 1 Cir. 6/27/03), 857 So.2d 529, 533. Factors to consider in fixing awards for loss of earning capacity include age, life expectancy, work life expectancy, appropriate discount rate, the annual wage rate increase, prospects for rehabilitation, probable future earning capacity, loss of earning ability, and the inflation factor or decreasing purchasing power of the applicable currency. Tate v. Kenny, 14-0265 (La.App. 1 Cir. 12/23/15), 186 So.3d 119, 129.

The fact finder’s determination of the amount, if any, of an award of damages, including lost earning capacity, is a finding of fact. Ryan v. Zurich American Ins. Co., 07-2312 (La. 7/1/08), 988 So.2d 214, 219. However, unlike awards for past lost earnings, awards for lost future income or loss of future earning capacity are inherently speculative and are intrinsically insusceptible of being calculated with mathematical certainty. Therefore, the fact finder is given much discretion in fixing these awards. See LSA-C.C. art. 2324.1; Graham, 37 So.3d at 1016. Nevertheless, a projection of loss of future earning capacity must have a factual basis in the record, and an award may not be based upon speculation, possibility, or conjecture. Jenkins v. State ex rel. Dept. of Transp. and Dev., 06-1804 (La.App. 1 Cir. 8/19/08), 993 So.2d 749, 775, writ denied, 08-2471 (La. 12/19/08), 996 So.2d 1133.

Additionally, the rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Ryan, 988 So.2d at 222; Graham, 37 So.3d at 1016. A fact finder may accept or reject the opinion expressed by an expert, in whole or in part. The trier of fact may substitute common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. Ryan, 988 So.2d at 222.

Further, where expert testimony differs, it is the trier of fact who must determine the more credible evidence, and factual findings based upon that determination may not be overturned unless manifest error appears in the record. In deciding to accept the opinion of one expert and reject the opinion of another, a trial court can virtually never be manifestly erroneous. Hannan v. Hannan, 99-0842 (La. App. 1 Cir. 5/12/00), 761 So.2d 700, 705, writ denied, 00-1723 (La. 9/29/00), 770 So.2d 349.

In the present case, the defendants contend that the record does not support the trial court’s award of lost wages and loss of future earning capacity. Particularly, they assert that all of the expert testimony established unequivocally that Ms. Lemings could return to work on a full-time basis and that there were a myriad of jobs available to her at the same income that she was able to earn prior to the subject accident.

IfiThe record reflects that, prior to the accident, Ms. Lemings was employed as a labor and delivery room nurse, a physically demanding job considered medium to heavy duty level work. Ms. Lemings testified that, immediately after the accident, her head, neck, back, and leg began hurting. She stated that although she was able to drive from the accident to Earl K. Long Hospital to take a recertification class, on the day following the accident, the pain was “much, much worse.” Ms. Lemings then went to Lake After Hours, an urgent care facility, where she was diagnosed with contusion of the hand, cellulitis of the leg, and sprain of the knee and leg. Thereafter, Ms. Lemings began treating with her primary care physician, Dr. Luther Stewart, who also diagnosed cervicalgia and lumbago. Because of continued complaints of pain, Dr. Stewart referred Ms. Lemings to Dr. Eric K. Oberlander, a neurosurgeon.

Dr. Oberlander first saw Ms. Lemings on May 7, 2012. After his medical assessment, Dr. Oberlander’s opinion was that Ms. Lemings “had a bad neck” and that she would need surgery in the future. An April 6, 2012 MRI showed disc herniations at C5-6, C6-7, and C7-T1, with spondylosis and neural foraminal narrowing. Dr. Ober-lander stated that some of the findings on the MRI were “likely acute” and some “likely exacerbated” by the accident and that Ms. Lemings became symptomatic with the subject accident. Ms. Lemings wished to initially try conservative treatment, which included epidural injections and physical therapy that- provided her some relief.

Later in 2012, Ms. Lemings, who last worked as a self-employed travel nurse, accepted a 13-week nursing assignment in Santa Clara, California. She stated that she completed the contract, but by the second week realized that it was a mistake. Ms. Lemings testified that her pain grew worse and that it took her extra time to drive home because on the way back she had to spend an entire day in bed. Ms. Lemings also testified that she has not tried to work since her contract in California.

When Dr. Oberlander saw that conservative treatment was not affording Ms. Lemings relief, he ordered an updated MRI, which was performed on May 7, |„2013. Dr. Oberlander stated that according to the MRI, Ms. Lemings’ condition may have gotten “a little worse” and that surgery was required to permanently fix the problem in her neck and back. On June 21, 2013, Ms. Lemings underwent an anterior cervical discectomy and fusion at multiple levels. Dr. Oberlander stated that he removed the four damaged discs, replaced them with spacers, and clamped it all with a four-level plate. Dr. Oberlander further stated that Ms. Lemings had a “rough go” of it following surgery, noting that she had trouble swallowing and continued to have pain. Dr. Oberlander ordered x-rays and a CT scan, which showed that the surgery and the healing “looked good.” Ms. Lem-ings was diagnosed with post-laminectomy syndrome and occipital neuralgia. Dr. Ob-erlander also noted that Ms. Lemings’ neck was angled in the wrong direction, which accelerates wear and tear. Additionally, he stated that fusion surgeries are well known to increase stress on the adjacent level in the spine.

Karl Kleinpeter, a physical therapy expert, treated Ms. Lemings for approximately two months beginning on May 14, 2012, after she was referred from Dr. Ob-erlander. Mr. Kleinpeter also saw Ms. Lemings post-operatively, at which time he found her to have a 42% disability rating. When asked if Ms. Lemings was capable of light sedentary work, Mr. Kleinpeter stated that would depend on what her job entailed. It was his opinion that it would be difficult for Ms. Lemings to sustain a 40-hour work week even in a job involving only paperwork. However, he indicated that he would defer to the findings of her functional capacity evaluation (FCE).

On July 16, 2014, Billy Naquin, also an expert in the field of physical therapy, conducted the FCE of Ms. Lemings at the request of Dr. Oberlander. According to the FCE, Ms. Lemings was not able to return to her previous level of work as a registered nurse on a labor and delivery floor, as that position was classified at a medium physical demand level. However, the FCE also showed that Ms. Lemings demonstrated the ability to perform sedentary work with certain limitations as 17noted in the FCE. Mr. Naquin therefore classified Ms. Lemings as capable of functioning at a sedentary to light physical demand level based on full-time work.

In contrast, Ms. Lemings testified that she did not think that she was capable of light or sedentary work on a daily basis. She stated that she has problems sitting and has headaches that affect her concentration. Ms. Lemings also stated that she did not think she was employable because if she had a bad day, she would not be'able to work the following day. Additionally, Ms. Lemings testified that she cannot lift anything and can only drive for about thirty minutes. Ms. Lemings further stated that because she is unable to take pain medication, she was referred to Dr. Martin A. Langston for pain management, whose care she was still under at the time of the trial.

Carla D. Seyler, a certified and' licensed vocational rehabilitation counselor and accepted by the trial court as an expert in vocational rehabilitation, testified for the defendants. Ms. Seyler testified that she met with Ms. Lemings on October 24, 2014. She stated that she performed intelligence screening, tested academic skills and achievement, and conducted other tests to see how Ms. Lemings was functioning. Ms. Seyler testified that she based Ms. Lemings’s physical capabilities on the records provided, including the FCE and the concurrence of Dr. Langston.

While Ms. Seyler did not think that Ms. Lemings could be a labor and delivery nurse as she had been in the past, she believed that there were other types of available nursing positions that Ms. Lem-ings was qualified for and 'could perform within her physical limitations. Ms. Seyler stated that nursing positions |sin the area are in demand and readily available. Ms. Seyler further testified that because Ms. Lemings could no longer work as a floor nurse, she looked at administrative positions that would not require hands-on patient care. Ms. Seyler stated that Ms. Lemings has a Bachelor of Science degree in nursing and not just an associate’s degree, she has kept her license current, and she has an administrative background. Ms. Seyler testified that she has hired nurses with a similar background to Ms. Lemings.

On cross-examination, Ms. Lemings unsuccessfully attempted to impeach Ms. Seyler’s testimony regarding Ms. Lemings’ release to return to work, with excerpts read from Dr. Langston’s deposition. Upon questioning, Ms. Seyler testified that although she was aware that Dr. Langston did not consider Ms. Lemings to be at maximum medical improvement, Dr. Lang-ston had indicated in his August 2015 deposition that Ms. Lemings could perform sedentary work within the limitations of the FCE.

Dr. William P. Culbertson, Ph.D., a retired professor at LSU and an expert in the field of economics and income calculation, testified on behalf of Ms. Lemings. He stated that he was retained to do an analysis regarding past, present, and future loss of income and economic loss for Ms. Lemings with the assumption that she was unable to return to any gainful employment. Dr. Culbertson looked at Ms. Lemings’ tax returns for the years 2008 through 2012, and he considered her yearly earning capacity to be $75,000.00. Dr. Culbertson stated that Ms. Lemings was injured at 53.6 years. Using government tables, he determined that her work expectancy from the date of the accident was 8.6 years and stated that the length of time between the date of Ms. Lemings’ injury and the date of trial was 3.4 years. [flHe therefore calculated her past lost wages to be $255,000.00 through the date of trial. With regard to Ms. Lemings’ loss of earning capacity, Dr. Culbertson then computed that Ms. Lemings’ future lost wages would be $378,194.00, using a discounted rate for her future work expectancy of 5.2 years. His report also included an amount for loss of household work of $54,109.00. In accordance vrith his calculations, Dr. Culbertson considered Ms. Lemings’ total loss under these circumstances to be $687,303.00.

Dr. Culbertson further testified that he reviewed the report of Dr. G. Randolph Rice, Ph.D., the defendants’ economic expert. Dr. Rice chose to use the amount of $69,424.00 as Ms. Lemings’ yearly earning capacity at the time of the injury, as opposed to Dr. Culbertson’s number of $75,000.00. Dr. Rice also deducted Ms. Lemings’ employee business expenses from that number, which Dr. Culbertson did not do. Dr. Culbertson testified if he had done so, his number would be approximately nine percent lower.

When questioned directly by the trial court as to what Ms. Lemings’ loss of future earning capacity would be if she could work, but at only $10.00 per hour, Dr. Culbertson stated that a 40-hour work week at $10.00 per hour would equal a yearly income of $20,800.00. Using the 5.2 years future work life expectancy and discount rate, Dr. Culbertson then calculated the amount of $104,886.00 in future income. Subtracting that amount from his total-loss figure of $687,303.00, which was based on Ms. Lemings’ inability to return to work, Dr. Culbertson determined that Ms. Lemings’ lost wages and loss of future earning capacity under those circumstances would be $582,418.00.

Dr. Rice, a professor emeritus in the Department of Economics at Louisiana State University, testified that he was asked to make calculations assuming that Ms. Lemings could return to work earning between $21.00 per hour and $30.00 per hour. He stated that he learned the economics of this case from Dr. Culbertson’s report and also looked at the tax records and the vocation report of Ms. Seyler. Dr. Rice testified that he took out Ms. Lem-ings’ expenses, which was a slight adjustment to Dr. Culbertson’s report, and he duplicated the report, but |1ftwith slightly lesser numbers. For example, subtracting Ms. Lemings’ expenses, her past losses were $206,481.00. Using the same discount rate and work life expectancy of 5.2 years that Dr. Culbertson used, Dr. Rice came up with $323,060.00 as the present value of Ms. Lemings’ future ability to earn without the consideration of returning to work. However, Dr. Rice stated that if Ms. Lem-ings was able to return to work at $21.00 per hour for a 40-hour work week, she would be able to earn $43,680.00 per year. From that amount, Dr. Rice calculated a discounted present value of $223,561.00 for Ms. Lemings’ future earning capacity. Using a $30.00 per hour rate for full-time work, Dr. Rice calculated a present value of $319,373.00 for Ms. Lemings’ future ability to earn.

At the conclusion of the trial, the trial court took the matter under advisement. On August 28, 2015, the trial court rendered and signed its judgment, concluding that Ms. Lemings “has proven her claim for lost wages and loss of future earning capacity,” and it awarded a total of $582,418.00. The trial court also stated in the judgment that Ms. Lemings “is not completely disabled and is capable of working.”

Although the trial court did not separate the awards for lost wages and for loss of future earning capacity, it is apparent that the trial court adopted Dr. Culbertson’s testimony and calculations in rendering its award for these items of damage. Dr. Culbertson’s figure of $255,000.00 for lost wages was based on an income of $75,000.00 per year for the 3.4 years between the date of the accident and the date of trial. In deciding to accept the opinion of one expert over the opinion of another expert, a trial court can virtually never be manifestly erroneous. See Hannan, 761 So.2d at 705. Therefore, we find that the $255,000.00 amount in past lost wages to be reasonable and substantiated by the record. Further, given that the trial court did not make the legal determination until trial that Ms. InLemings was capable of working, we also find no manifest error in the trial court using the date of trial with regard to the calculation for past lost wages.

The defendants assert, however, that the trial court erred in finding that Ms. Lem-ings could only find employment at $10.00 per hour. In calculating Ms. Lemings’- loss of future earning capacity, it appears that the trial court may have relied on Ms. Lemings’ testimony regarding her search of clerical positions on monster.com. According to her testimony, she researched clerical positions at “minimum wage or "a little higher” that were in the range of $10.00 per hour. Those positions only required a high school diploma at most.-The record is devoid of any indication that her search was within the medical field or' was one that took into account her education, training, and experience as a nurse. Therefore, any possible reliance on such non-probative evidence would have been error.

However, it is well-settled that the trial court’s oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment. Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61 So.3d 507, 572. See also LSA-C.C.P. arts 1918, 2082 and 2083. Judgments are often upheld on appeal for reasons different than those assigned by the trial court. Wooley, 61 So.3d at 572. It is not the role of the appellate court to speculate as to how a trial court may have reached its conclusion. While it would clearly have been error for the trial court to rely on Ms. Lemings’ monster.com search, which failed to take into account her training and background, because judgments, not reasons for judgment, are appealed, we nevertheless- find • that the record reasonably supports the trial court’s award for loss of future'earning capacity.

I iaMs. Lemings was fifty-eight years old at the time of trial. Dr. Oberlander testified that Ms. Lemings will likely have some level of chronic pain forever. Mr. Kleinpeter testified that when he met with Ms. Lemings after her surgery, she was unable to meet her long-term physical therapy goals. He opined that any employment opportunities would have to consider whether Ms. Lemings could take breaks and extended lunches as necessary. It was Mr. Kleinpeter’s opinion that it would be difficult for Ms, Lemings to sustain a sedentary forty-hour work week. Ms. Lemings also testified that she did not believe that she was capable of working full time. Although contradictory testimony was offered at trial, the trier of fact is free to accept or reject the testimony expressed by any expert, -in whole or in part. See Ryan, 988 So.2d at 222. After a thorough review of the record, we cannot say that the trial court abused its vast discretion and, thus, find no error in the trial court’s award of $582,418.00 for Ms. Lemings’ past lost wages and loss of future earning capacity.

CONCLUSION

For the above and foregoing reasons, we affirm the August 28,2015 judgment of the trial court. All costs of this appeal are assessed to the defendants, Jana Sanasac, Kiln Trucking, Inc., and State National Insurance Company.

AFFIRMED.

Whipple, C.J., concurs for reasons assigned.

Guidry, J,, concurs in the result.

WHIPPLE, C.J.,

CONCURRING.

h This case involves a 58-year-old plaintiff, with an undisputed 42% disability rating who cannot sit for more than two hours, who has significant physical restrictions and limitations, limited dexterity, and constant headaches, eye, back, and neck pain from, inter alia, a four-level fusion, and who has occipital neuralgia and post-laminectomy syndrome.

The majority references the opinion of Carla Seyler, the defendants’ vocational rehabilitation expert. However, should this matter be subject to further review, I write separately to note other important aspects of this record. In particular, the majority opinion, in my view, does not reflect that Ms. Seyler’s testimony was impeached, as she testified that she was not aware that Dr. Langston had not released Ms. Lemings to return to work. Instead, Seyler acknowledged she was under the erroneous impression that plaintiff had been released to work when she made her potential employment profile and rendered her report. Given the inaccuracies or incompleteness of the information conveyed by the defendants’ expert in assessing the job market, I find no error by the trial court in its decision to reject this testimony, and to instead credit the testimony of plaintiff and the doctors and therapists who treated her.

Moreover, I agree with the plaintiff that given the testimony of the appellee, Dr. Oberlander, the deposition testimony and records of Dr. Langston, Karl Kleinpeter, physical therapist, and Mr. Billy Naquin, there is clearly a factual basis for the court’s ultimate findings and decision.

^Finally, the majority opinion indicates in its opinion that “[t]he record is devoid of any indication that her search was within the medical field or was one that took into account her education, training, and experience as a nurse,” yet then finds nevertheless that “the record reasonably supports the trial court’s award for loss of future earning capacity.” I agree that the record supports the award as affirmed by the majority, but note that Ms. Lemings’ testimony reflects that she reasonably researched and sought the jobs that she was actually capable of performing, which limitations are supported by the medical testimony. In sum, I agree with the ultimate decision to affirm and concur in the result reached by the majority.

      . According to the FCE, Ms. Lemings was considered capable of frequent sitting, standing, bending/stooping, kneeling, crouching, and rotation, as well as occasional walking, reaching, squatting, and climbing stairs. Mr. Naquin also indicated that Ms. Lemings could occasionally lift and carry twenty pounds, push/pull approximately fifty pounds, and carry twelve pounds with each arm. Ms, Lemings could also frequently lift or carry ten pounds and constantly handle five pounds.

      . Ms. Seyler testified that she conducted surveys of the local job market and contacted local employers from June 24, 2014 to August 11, 2015, the day before trial, and found the following jqb possibilities: an intake coordinator at Baton Rouge General Hospital at $22.00 to $28.00 per hour; a clinical appeal coordinator at $50,000.00 to $55,000.00 per year; a health care services nurse from home at $20.00 to $40.00 per hour; a telephonic registered nurse case manager at $30.00 to $35.00 per hour; a clinical documentation specialist with Lane Regional Medical Center in Zachary at $21.00. to $31.00 per hour; a registered nurse preadmission person at Baton Rouge General Hospital at $40,000.00 per year; a nurse case manager, requiring driving, at $26.00 to $30.00 per hour; a clinical liaison with AMG Specialty Hospital at $40,000.00 to $60,000.00 per year; a registered nurse transition navigator with Ochsner Hospital at $65,000.00 per year; and a utilization review nurse with United Health Care at $55,000.00 to $75,000.00 per year.

      .We note that Dr. Langston’s deposition was not made part of the record.

      . Ms. Lemings’ counsel read from Dr. Lang-ston’s deposition, wherein Dr. Langston stated, regarding the FCE, "I would agree with the recommendation, as far as sedentary work with the limitations as outlined here.” Further, the trial court ultimately found that Ms. Lemings was capable of working.

      . However, we again note that the trial court determined that Ms. Lemings was "not completely disabled and ... capable of working."

      . Dr. Rice agreed with Dr. Culbertson, after reviewing Ms. Lemings’ history of employment, that her work-life expectancy of 62.2 years "would seemingly be more attuned to her circumstances” than her working to 66.8 years.

      . We note that the figure testified to by Dr, Culbertson of $582,418.00 for past lost wages and loss of future earning capacity, based on an earning capacity of $10.00 per hour, is the exact figure awarded by the trial court.

      . Ms. Lemings testified, “When ... I got online at monster.com, I found the only jobs that were listed were, like, file clerk or office clerical work.” Thereafter, when asked if she was aware of any of the type of positions suggested by Ms. Seyler, Ms. Lemings stated that “[tjhere were no jobs like that.”

      . We further note that the trial court’s judgment refers to Ms. Lemings as not being "completely disabled.” Therefore, it is unclear as to whether the trial court relied on die $10.00 per hour figure or calculated her loss of future earning capacity based oh less than a forty-hour work week.


author: WHIPPLE, C.J.

text:
    Wilbert HARRIS v. CITY OF BATON ROUGE
    NUMBER 2016 CA 0163
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 22, 2016

      See also 2016 WL 7407376.

      Jean-Paul, Robert Gonzales, LA, Counsel for Plaintiff/Appellant #2 Wilbert Harris
    Dawn N. Guillot, Baton Rouge, LA, Counsel for Defendant/Appellant #1 City of Baton Rouge/ Parish of East Baton Rouge
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   WHIPPLE, C.J.

|2This is a companion case to Harris v. City of Baton Rouge, Parish of East Baton Rouge, 2016 CA 0164 (La. App. 1 Cir. -/-/-) (unpublished), also handed down this day. The background facts and procedural history of the matter are set forth in that case and will not be repeated herein. In this appeal, both defendant, the City of Baton Rouge/Parish of East Baton Rouge (“the City”), and plaintiff, Wilbert Harris, appeal the November 9, 2015 judgment of the trial court that awarded Harris past loss of wages, past loss of fringe benefits, penalty wages, expert witness fees, “lost DROP damages,” and costs.

The City raises the following assignments of error on appeal:

(1)' The trial court erred in awarding Harris penalty wages, attorney’s fees, and expert fees pursuant to LSA-R.S. 23:631, et seq. (“the Wage Payment Act”), because Harris’s claim for damages is pursuant to LSA-R.S. 49:113, not the Wage Payment Act.
(2) The trial court erred in granting interest to Harris for his DROP account payments, which were distributed to him as retirement checks.
(3) The trial court erred in failing to grant offsets for delays and continuances as well as for Harris’s failure to mitigate his damages.

The assignments of error raised by Harris on appeal are as follows:

(1) The trial court erred in finding that Harris was not entitled to his entire DROP balance.
(2) The trial court erred in failing to calculate Harris’s vacation and sick time that he would have accrued had he continued working.

DISCUSSION

Penalty Wages and Expert Fees

(The City’s Assignment of Error No. 1)

In its first assignment of error, the City contends that the trial court erred in ^awarding Harris penalty wages, attorney’s fees, and expert fees.

For the reasons set forth in the companion appeal, we likewise find herein that the trial court erred in awarding “penalty wages” to Hams. As discussed in the companion appeal, this case is governed by LSA-R.S. 49:113, not LSA-R.S. 23:631 of the Wage Payment Act. Louisiana Revised Statute 49:113 addresses salaries and wages of employees in the state or city civil service and off-sets for wages earned in outside employment. Notably, LSA-R.S. 49:113 does not authorize the award of “penalty wages.” Punitive damages may not be awarded by a court of this state unless authorized. LSA-C.C. art. 3546. We are unable to find any authority for the award of punitive damages, he., penalty wages, under the facts of this case. Therefore, we find that the trial court erred in awarding Harris “penalty wages” in the amount of $13,551.00.

However, we find no error in the trial court’s award of expert witness fees in favor of Harris. The trial court has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Bourgeois v. Heritage Manor of Houma, 96-0135 (La.App. 1 Cir. 2/14/97), 691 So.2d 703, 706. Louisiana Revised Statute 13:4533 provides:

The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.

Moreover, LSA-C.C.P. art. 1920 provides:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

| ¿Accordingly, in the instant case, we are unable to find that the trial court abused its discretion in awarding Harris $5,856.00 for expert witness fees, even though the trial court erred in awarding him “penalty wages.”

Interest on DROP Payments

(The City’s Assignment of Error No. 2)

In its second assignment of error, the City contends that the trial court erred in awarding Harris “lost DROP damages.” The $33,818.00 awarded to Harris as “lost DROP damages” is the amount of interest, as calculated by Harris’s forensic accounting expert, that Harris would have earned on his DROP account if the City had not “illegally” terminated him and if the City had reinstated him to his prior position following the decision of the Personnel Board.

Following his termination, Harris received his retirement checks directly, rather than the checks being paid into his DROP account. Accordingly, the City argues that since Harris received his checks directly, he “could have invested them in the same manner an investment into the DROP was made” and, therefore, no interest should be owed because Harris had the benefit of receiving the money immediately, rather than having the funds placed into his DROP account. We disagree.

Harris entered into a contract with the City to enter into the DROP program for five years. Harris was terminated after one year in the program and was never reinstated to his prior position. Thus, Harris lost the opportunity for four years of participation in DROP and related benefits. If Harris had not been “illegally terminated,” and if the City had reinstated him to his prior position following the decision of the Personnel Board, Harris’s retirement checks would have been deposited into his DROP account, and undisput-edly would have accrued greater interest on this account.

| fiThe standard of appellate review of a damage award is clear abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La. 1993). We have found no basis under the present law for denying interest on wages that were lawfully due and would have been paid into Harris’s DROP account and would have accrued economic benefits, but for the City’s actions in wrongfully terminating him and failing to reinstate him to his employment position in accordance with the findings of the Personnel Board. Accordingly, we are unable to say that the trial court abused its discretion in awarding Harris interest he would have earned on his DROP account had he not been terminated.

Damage offsets

(The City’s Assignment of Error No, 3)

In its final assignment of error, the City argues that the trial court erred in failing to offset the damages awarded to Harris for delays and continuances caused by Harris, as well as for his failure to mitigate his damages.

At the hearing, the City introduced a timeline of the continuances of Harris’s hearing before the Personnel Board. The City argues that the damages awarded should be offset for the time period when these continuances took place, because the continuances were due to the fact that Harris previously agreed to a settlement with the City, wherein Harris would be reemployed as a maintenance worker III, and dismissed his appeal with the Personnel Board. The City notes that Harris later withdrew from the settlement, failed to report to work for the job that was agreed to in the settlement, and then reinstated his appeal with the Personnel Board.

Harris testified at the hearing before the trial court that he did not agree to a settlement or any of the alternative job positions offered to him by the City. Additionally, the City acknowledged that there was not a signed settlement agreement by Harris. After considering this conflicting testimony, we are unable |flto find that the trial court erred in refusing to offset Harris’s damage award for “delays and continuances” as suggested by the City.

The City also argues that Harris should not be entitled to wages after August 29, 2011. Following the Personnel Board hearing, the City received a letter, dated August 29, 2011, from Harris’s former attorney stating that Harris no longer wished to return to work with the City. Harris testified that he had not seen this letter and, more importantly, that he was never contacted by the City regarding any employment opportunities after the Personnel Board hearing. Additionally, the City presented conflicting testimony as to whether Harris was not offered his prior employment position back because of the August 29, 2011 letter or other reasons. Specifically, the City’s Assistant Public Works Director testified that Harris was not offered his same employment position back following the Personnel Board hearing because the position was filled.

In concluding that Harris was entitled to wages for the time period of August 20, 2011, through his anticipated retirement date, the trial court made a specific credibility determination apparently finding Harris’s testimony that he never saw or authorized his attorney to write the August 29, 2011 letter as credible. When factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given great deference by the appellate court. Thus, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. Theriot v. Bergeron, 2005-1225 (La.App. 1 Cir. 6/21/06), 939 So.2d 379, 385.

The City also argues that Harris’s wages should be offset by the amount of wages that he would have earned as a maintenance worker III — the position offered to him by the City prior to the Personnel Board hearing. As required by LSA-R.S. 49:113, Harris’s wages were offset by wages that he received from private employment undertaken following his termination by the City. On review, |7we are unable to find any legal support for the proposition that a wrongfully terminated employee’s damages may be further offset for failure to mitigate by not accepting an alternative position offered to him by his employer for less pay. In other cases involving employee contracts, the courts have found there is no duty to mitigate lost salary damages on this basis. See Andrepont v. Lake Charles Harbor and Terminal Dist., 602 So.2d 704, 707 (La. 1992).

Accordingly, we find no merit to the City’s argument that Harris’s damage award should have been further reduced for his alleged failure to mitigate.

Denial of Entire DROP Balance

(Harris’s Assignment of Error No. 1)

In his first assignment of error, Harris contends that the trial court erred by not awarding him an additional $217,354.00, which constitutes the amount that would have been contributed to his DROP account over the next four years if the City had reinstated him to his prior employment position.

At the hearing, Harris testified that pri- or to his termination, he received his paycheck directly and his retirement check was put into his DROP account. Following his termination, he received his retirement check directly on a monthly basis, rather than it being deposited into his DROP account. Harris’s forensic accountant testified that Harris received the retirement checks that would have gone into his DROP account, explaining that “the amount that was going to be put into that [DROP] account was paid to [Harris] so the only difference would be interest — or ... any earning that he would have made on that money, had it been |sin that account.” Accordingly, Harris’s accountant’s report does not include the $217,354.00 in “back DROP account contributions” that Harris seeks on appeal.

After considering the testimony and evidence, we agree with the City that an additional award to Harris for “back DROP account contributions” would be a “double-dip,” as Harris undisputedly has already received these funds via checks paid to him directly.

Vacation and Sick Time

(Harris’s Assignment of Error No. 2)

The trial court awarded Harris $8,618.00 for “past loss fringe benefits,” ie., vacation and sick time. On appeal, Harris seeks an increase in the amount awarded to $43,900.00, arguing that the amount awarded was for only one year (2008), while he should be awarded this amount for four additional years.

Harris’s expert forensic accountant report calculated his lost fringe benefits as $8,618.00. Moreover, Harris’s post-trial brief and the suggested judgment that he filed with the trial court state that fringe benefits should be awarded in the amount of $8,618.00. There is no evidence or argument in the record suggesting that Harris’s award for “past loss fringe benefits” should be greater than the $8,618.00 that he was actually awarded. As a general rule, appellate courts will not consider issues that are raised for the first time on appeal. Jackson v. Home Depot, Inc., 2004-1653 (La.App. 1 Cir. 6/10/05), 906 So.2d 721, 725. Accordingly, we decline to consider Harris’s request, asserted for the first time on appeal, for an increase in the amount awarded to him for “past loss fringe benefits.”

CONCLUSION

For the above and foregoing reasons, the portion of the November 9, 2015 judgment awarding Harris $13,551.00 in penalty wages is hereby reversed and vacated. The remaining portions of the November 9, 2015 judgment, awarding RHarris past loss of wages, past loss of fringe benefits, expert witness fees, lost DROP damages, and costs, are hereby affirmed. Costs of this appeal are assessed equally against Wilbert Harris and the City of Baton Rouge/Parish of East Baton Rouge.

AFFIRMED IN PART, AND REVERSED IN PART.

      . At the outset, we note that although the City raises the issue of attorney’s fees in this appeal, the judgment at issue herein does not actually award attorney’s fees. Instead, attorney’s fees were awarded in the December 14, 2015 judgment of the trial court, which is the subject of the companion appeal, Harris v. City of Baton Rouge, 2016-0164 (La. App. 1 Cir. -/-/-) (unpublished), also handed down this day.

      . The City did not offer any contradictory expert testimony.

      . See generally Baker v. Southern University, 590 So.2d 1313, 1317 (La. App. 1st Cir. 1991), wherein this court stated:
      In all other cases involving wage payments under employment contracts [judicial] interest is allowed and is allowed on each payment as it becomes due. We see no reason why the rule should be different for back wages owed by the State or its agencies. (Internal citation omitted.)


author: CHUTZ, J.

text:
    John WILLIAMS v. ABC INSURANCE COMPANY, Kentwood High School, The Louisiana State Board of Elementary and Secondary Education and Tangipahoa Parish School Board
    2016 CA 0345
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: December 22, 2016

      Anthony D. Irpino, Bobby G. Hawkins, New Orleans, Louisiana
    Counsel for Plaintiff-Appellant John Williams
    Ashley Edwards Sandage, Brook E. Dufour, Hammond, Louisiana
    Counsel for Defendant-Appellee Tangi-pahoa Parish School Board
    BEFORE: HIGGINBOTHAM, THERIOT AND CHUTZ, JJ.
   CHUTZ, J.

| aPlaintiff-appellant, John Williams, appeals the trial court’s grant of summary judgment, dismissing his claims for damages against defendant-appellee, the Tan-gipahoa Parish School Board (TPSB), as a result of injuries he sustained after he fell on the premises of Kentwood Magnet High School (Kentwood High). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Williams filed a petition for damages alleging that he had been an invited guest at Kentwood High and sustained injuries when he fell on “a hazardous and dangerous condition.” He averred that as a result of the hazardous and dangerous condition, he was entitled to damages from TPSB who he alleged is the actual custodian of the high school.

After answering the lawsuit, TPSB filed a motion for summary judgment, urging it was entitled to dismissal because Williams could not show an unreasonable risk of harm existed at Kentwood High. The trial court agreed and granted summary judgment. This devolutive appeal by Williams followed.

DISCUSSION

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, |ashow that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Temple v. Morgan, 2015-1159 (La.App. 1st Cir. 6/3/16), 196 So.3d 71, 767, writ denied, 2016-1255 (La. 10/28/16), 208 So.3d 889.

The burden of proof is on the mover. See La. C.C.P. art. 966C(2). But if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966C(2); Temple, 196 So.3d at 76.

It is undisputed in this case that TPSB is a public entity. See La. R.S. 9:2800G(1) (including political subdivisions within the definition of a public entity); see also La. Const. art. VI, § 44(2) (a political subdivision means a parish, municipality, and any other unit of local government, including a school board, authorized by law to perform governmental functions). A public entity is responsible under La. C.C. art. 2317 for damages caused by the condition of buildings within its care and custody. La. R.S. 9:2800A.

14According to Article 2317:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

Vicarious responsibility under Article 2317 extends to the things which we have in our custody, including buildings. See William E. Crawford, 12 La. Civ. L. Treatise, Tort Law § 9:2 (2d ed.).

La. C.C. art. 2322 sets forth vicarious responsibility which may attach for damage caused by the ruin of a building, providing in pertinent part:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Under Article 2322, to hold the custodian of a building liable for damages caused by the building’s ruin or a defective component, a plaintiff must prove (1) ownership or custody of the building; (2) the owner/custodian knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation. See Broussard v. State ex rel. Office of State Bldgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 182-83. Additionally, our jurisprudence requires that the ruinous building or its defective component part create an unreasonable risk of harm. Id., 113 So.3d at 183 (citing Entrevia v. Hood, 427 So.2d 1146, 1148-49 (La. 1983)).

|fiThe custodian of a building is not responsible for all injuries resulting from any risk posed by the building. Rather, the custodian is only responsible for those injuries caused by a ruinous condition or defective component part that presents an unreasonable risk of harm to others. See Broussard, 113 So.3d at 183.

Although the precise phrase “unreasonable risk of harm” does not appear in the statutes governing premises liability, see Nugent v. Car Town of Monroe, Inc., 50,910 (La.App. 2d Cir. 9/28/16), 206 So.3d 369, 374, to aid the trier-of-fact in making the unscientific, factual determination of whether a condition presents an unreasonable risk of harm, our courts have consistently given consideration to the risk-utility balancing test by which the fact-finder must balance the gravity and risk of harm against individual societal rights and obligations, the social utility of the thing, and the cost and feasibility of repair. Specifically, the courts have synthesized the risk-utility balancing test to a consideration of four pertinent factors: (1) the utility of the complained-of condition, (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition, (3) the cost of preventing the harm, and (4) the nature of the plaintiffs activities in terms of its social utility or whether it is dangerous by nature. See Broussard, 113 So.3d at 184. The finding of an unreasonable risk of harm is “wed to the facts,” “context-specific,” and to be determined on the facts and circumstances of the particular case. Nugent, 206 So.3d at 375. The absence of prior complaints or incidents is a valid consideration in assessing whether a given condition poses an unreasonable risk of harm. Id. (citing Chambers v. Village of Moreauville, 2011-898 (La. 1/24/12), 85 So.3d 593).

The mere fact an accident occurred because of some vice or defect does not elevate the condition of the thing to that of an unreasonably dangerous defect. | (¡Compliance with building codes is only one factor to consider in determining a building custodian’s liability. Buildings that predate the promulgation of building codes are “grandfathered in,” meaning that existing structures not in compliance with new codes are not required to comply with the new codes, unless there is a major renovation. Nugent, 206 So.3d at 376. In the analogous field of zoning, many municipalities allow the continued use of nonconforming structures, to avoid constitutional issues and unfairness to the owner. Nugent, 206 So.3d at 376 (citing Redfearn v. Creppel, 455 So.2d 1356 (La. 1984)).

In this case, Williams alleged he sustained injuries when he fell in a hole at the entrance of Kentwood High. In support of its motion for summary judgment, TPSB introduced the affidavits of Rochell Bates, the Kentwood High principal, and LaVar James, a director of the Department of Transportation and Risk Management. These TPSB employees attested that neither had received any reports of problems or injuries with the area leading to the school’s gymnasium. Bates has been employed at Kentwood High since 1994, and LaVar has been working as a director since 2010.

TPSB also placed into evidence the deposition testimony of Terrell Hookfin, whom the parties agreed is a coach at Kentwood High. According to Hookfin, the entrance area to the gym has been in substantially the same condition since he attended high school there. He stated that the entrance was used by people, including parents, teachers, students, and coaches, and that he used it daily. Hookfin had never been told by anyone that the entrance, which was a means of both entry and exit, was a problem. He did not think the entrance created a safety risk, noting that if it did, he would not want his son using it. Hookfin indicated that the entrance had been built with the hole outside of the door and that the hole was obviously used for drainage.

|7A1so admitted into evidence was the affidavit of Dean M. Duplantier, a registered professional architect who previously has been qualified in district court as an expert in architecture, design, and construction. He stated that the original construction of the building was around 1931 and, therefore, predated the adoption of any recognized building design and construction standards in the State. According to Duplantier, at the time the building was constructed, it was of quality construction and reflected the inherent design standards and detailing of the period. He identified two minor renovation projections on the building, which cost TPSB a total of $320,708.00, and stated that neither involved any work related to the entrance into the gym where Williams was believed to have fallen. That the gym’s entrance has been in substantially the same condition and configuration for 80 years before Williams was injured evinced that thousands of people had used the entrance without incident according to Duplantier. Therefore, he opined that the original side entryway into the Kentwood High gym provided a safe means of ingress and egress, which should not have impacted Williams’ ability to enter the gym if he had been cognizant of the built environment upon which he traversed.

With this showing, TPSB established an absence of prior complaints and that the Kentwood High building predated the promulgation of building codes was, therefore, “grandfathered in” and not required to comply with new building codes absent a major renovation. Thus, TPSB successfully pointed out an absence of factual support for a finding that the entrance created an unreasonable risk of harm. The burden then shifted to Williams to produce factual evidence sufficient to establish that he- will be able to satisfy his evidentiary burden of proving his allegation that the “hazardous and dangerous condition” at Kentwood High in which he fell created an unreasonable risk of harm.

In his opposition to summary judgment, Williams asserted that he “was attempting to enter [Kenwood High’s gym] to pick up his grandson when he fell in|sa hole immediately outside the entrance.” To support this contention, Williams offered the affidavit of Ladd Ehlinger,. a registered professional architect who has previously been qualified in numerous district courts in Louisiana, Alabama, and Arkansas as an expert in trip and fall accident analysis. Ehlinger identified several deficiencies which, he opined, constituted defects that presented unreasonable risks of harm because they violated the Life Safety Code, NFPA 101, and the Standard Building Code. Ehlinger expressly noted that the defects he outlined were caused by the original design and construction of the building and suggested that TPSB had failed to maintain the Kentwood High property. Importantly for purposes of this summary judgment, none of the deficiencies to which Ehlinger pointed were related to the hole in which Williams maintained he fell, and Ehlinger did not relate the deficiencies to the presence of the hole or to Williams’ inability to traverse the area without encountering the hole.

Williams also submitted excerpts of Ho-okfin’s deposition testimony in which the coach testified that he hoped the school would be remodeled so it would be in better shape. But Hookfin indicated that he thought the remodeling was needed because it was an old design, not because it had deteriorated to the point that it was a safety concern.

Williams offered nothing to rebut the showing that in the 80 years the Kentwood High gym entrance has been used at the school no one has ever reported a complaint, problem, or prior accident. And because TPSB showed that the Kentwood High building, and the entrance in particular, were part of the original design and construction which predated the adoption of building standards, Williams’ responsive showing that certain deficiencies existed due to TPSB’s ^failure to comply with building codes is insufficient to create a material issue of fact to present to the trier of fact. Mindful of the dearth of evidence establishing that the hole into which he fell created an unreasonable risk of harm, Williams has not produced factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proving the gym’s entrance presented an unreasonable risk of harm, the trial court correctly granted summary judgment in favor of TPSB.

DECREE

For these reasons, the trial court’s judgment granting summary judgment in favor of and dismissing defendant-appellee, the Tangipahoa Parish School Board, from this litigation is affirmed. Appeal costs are assessed against plaintiff-appellant, John Williams.

APPEAL MAINTAINED; JUDGMENT AFFIRMED

      . Kentwood Magnet High School is also identified as Kentwood High School throughout the record.

      . Williams also named as additional defendants the Louisiana State Board of Elementary and Secondary Education, a fictitious insurer of TPSB, and Kentwood High.

      . A judgment issued by the trial court on September 3, 2015 neither dismissed the case nor disposed of or dismissed Williams’ claims. Therefore, this court issued a show-cause order, directing the parties to brief the viability of the appeal and allowing the trial court to sign an amended judgment curing the apparent jurisdictional defect. On April 13, 2016, the trial court issued an amended judgment dismissing all of Williams’ claims against TPSB with prejudice. Because the amended judgment fully dismisses TPSB from this litigation, it is a partial final judgment which is immediately appealable. See La. C.C.P. art. 1915A(1) and (3); Motorola, Inc. v. Associated Indem. Corp., 2002-0716 (La.App. 1st Cir. 4/30/03), 867 So.2d 715, 719. Accordingly, the appeal is maintained.

      . La. C.C.P. art. 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of Article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article in tins case. See Acts 2015, No. 422, §§ 2 and 3.

      . TPSB asserts its potential liability should be analyzed under La. R.S. 9:2800C. In response to a similar assertion by the State, the Broussard court noted that the elements of a claim under La. R.S. 9:2800C closely parallel the elements of a claim under Article 2322. The Broussard court pointed out that in order to hold a public entity liable under La. R.S. 9:2800C, a plaintiff must prove (1) custody or ownership of the defective thing by the public entity, i.e., garde; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation, and concluded that its analysis would, therefore, be substantially the same regardless of whether Article 2322 or La. R.S. 9:2800C were applied. 113 So.3d at 183 n.4.

      . Ehlinger found the following deficiencies: (1) The landing is inadequate in depth and should be at right angles to the door; (2) the riser height at the step down at the door side is less than 4 inches minimum height; (3) the step tread at the door has a spalled, deteriorated surface indicating no maintenance; and (4) the stair leading down into this area does not have any handrails.

      . Since the record fails to establish an eviden-tiary basis to support a finding of an unreasonable risk of harm, it is unnecessary to address whether TPSB was entitled to summary judgment on this issue of whether it had actual or constructive notice of an unreasonable risk of harm.