author: HOLDRIDGE, J.

text:
    IN the INTEREST OF J.J.
    2017 KJ 1565
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: FEBRUARY 27, 2018
    Katherine M. Franks, Louisiana Appellate Project, Madisonville, LA, Attorney for Appellant J.J.
    Hillar C. Moore, III, District Attorney, Otha "Curtis" Nelson, Monisa L. Thompson, Assistant District Attorneys, Baton Rouge, LA, Attorneys for Appellee State of Louisiana
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

The eleven-year-old juvenile, J.J., was alleged to be delinquent according to petition number 111,272, filed by the State on April 21, 2017, pursuant to the Louisiana Children's Code. The petition was based upon the alleged commission of simple arson, a violation of La. R.S. 14:52 (count one); criminal trespass, a violation of La. R.S. 14:63 (count two); and unauthorized entry of a place of business, a violation of La. R.S. 14:62.4 (count three). The juvenile entered a denial to the allegations. Following an adjudication hearing, the juvenile moved for judgment of acquittal. The juvenile court granted the juvenile's motion on counts two and three, and adjudicated the juvenile as delinquent on count one only. At the disposition hearing, the juvenile judge deferred disposition for six months and placed the juvenile on supervised probation for a period of six months pending final disposition. Contending that there are no non-frivolous issues upon which to support the appeal, appellate counsel filed a brief raising no assignments of error. For the following reasons, we affirm the juvenile's adjudication and deferred disposition and grant appellate counsel's motion to withdraw.

FACTS

On April 18, 2017, Baton Rouge Fire Arson Division Chief Investigator Darryl Sanders investigated a fire at Glen Oaks High School, which was undergoing renovations after flooding. Upon his arrival, two suspects, including the juvenile, were being detained. Mr. Sanders investigation revealed that two separate fires were set inside of the school. All accidental causes were ruled out. Mr. Sanders testified that his estimation of damages to the school was $10,000.00. The juvenile was transported to the Baton Rouge Fire Department Headquarters for questioning. In the presence of his guardian and grandmother, the juvenile told Mr. Sanders that he and another juvenile had been riding bikes in the area of the school and were "bored." When the two found an open window, they entered the school and started two fires inside of boxes using a disposable cigarette lighter. The juveniles realized that the fires were starting to grow. They retrieved fire extinguishers and attempted to extinguish the fires, but the fires were already "out of hand." The juveniles attempted to flee the scene, but were apprehended.

ANDERS BRIEF

Appellate counsel's brief contains no assignments of error and sets forth that it is filed to conform with State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam). Accordingly, appointed counsel requests to be relieved from further briefing in this case.

The procedure in Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), was discussed in State v. Benjamin , 573 So.2d 528, 529-31 (La. App. 4th Cir. 1990), sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam), and expanded by the Louisiana Supreme Court in Jyles , 704 So.2d at 242. According to Anders , 386 U.S. at 744, 87 S.Ct. at 1400, "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." To comply with Jyles , appellate counsel must review not only the procedural history and the facts of the case, but must also provide "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." Jyles , 704 So.2d at 242 (quoting Mouton , 653 So.2d at 1177 ). When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous.

Here, appellate counsel has adequately complied with the requirements necessary to file an Anders brief. Appellate counsel reviewed the juvenile court record, the procedural history, the adjudication, and the disposition. Appellate counsel concludes in her brief that there are no non-frivolous issues for appeal. Further, appellate counsel certifies that the juvenile was served with a copy of the Anders brief.

This court has conducted an independent review of the entire record in this matter, including a review for error under La. C. Cr. P. art. 920(2). We have found no reversible errors under Article 920(2). Furthermore, we have found no non-frivolous issues or juvenile court rulings that arguably support this appeal. Accordingly, the juvenile's adjudication and deferred disposition are affirmed. Appellate counsel's motion to withdraw, which has been held in abeyance pending the disposition of this matter, is hereby granted.

ADJUDICATION AND DEFERRED DISPOSITION AFFIRMED; MOTION TO WITHDRAW GRANTED.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Edwin Ray PARKER and Kenneth Brad Ott v. The SENATE OF the STATE of Louisiana, The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, and the State of Louisiana
    NUMBER 2017 CA 0323
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 6, 2018
    J. Arthur Smith, III, Adrienne D. Rachel, Baton Rouge, LA, Counsel for Plaintiffs/Appellees Edwin Ray Parker, et al.
    Jeff Landry, Attorney General, Patricia H. Wilton, Assistant Attorney General, Baton Rouge, LA, Counsel for Defendant/Appellant The Senate of the State of Louisiana and the State of Louisiana
    Harry J. Philips, Jr., Cynthia M. Amedee, John M. Parker, Jr., Baton Rouge, LA, Counsel for Defendant/Appellant Board of Supervisors of Louisiana State University & Agricultural & Mechanical College
    Chris J. Roy, Sr., Alexandria, LA, Counsel for Intervenors/Appellees Angelina Iles, et al.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

Defendants, the State of Louisiana (State), the Senate of the State of Louisiana (Senate), and the Board of Supervisors of the Louisiana State University and Agricultural and Mechanical College (Board), appeal from a trial court judgment in favor of plaintiffs, Edwin Ray Parker, Kenneth Brad Ott, and American Federation of State, County and Municipal Employees, Council 17, granting in part their motion for partial summary judgment and declaring that Senate Concurrent Resolution 48 (SCR-48) violates the Louisiana Open Meetings Law. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

During its 2014 Regular Session, the Louisiana Legislature adopted SCR-48, which, among other things, approved the closure of the Huey P. Long Medical Center in Pineville, Louisiana (HPL Medical Center).

On the evening of March 31, 2014, the Senate Committee on Health and Welfare (Committee) posted a Notice of Meeting that was scheduled for April 2, 2014 at 9:00 a.m. The Notice of Meeting included a proposed agenda, which did not reference SCR-48. However, the notice did state that the agenda listed therein was tentative and may be revised prior to the scheduled meeting and gave the means by which any revised notices could be located.

Thereafter, on April 1, 2014, at 4:19 p.m. the Committee posted a revised agenda, which added consideration of SCR-48. The synopsis for SCR-48, as contained in the revised agenda, stated:

HEALTH CARE Provides for legislative approval of and support to the Board of Supervisors of Louisiana State University for the strategic collaboration with the [S]tate in creating a new model of health care delivery in the Alexandria and Pineville area.

The Committee subsequently held its meeting as scheduled and reported SCR-48 with amendments. Thereafter, SCR-48 was adopted by the full Senate and the House of Representatives.

On June 3, 2014, plaintiffs, employees of HPL Medical Center and/or the employees' representatives, filed a petition for declaratory and injunctive relief pursuant to the Louisiana Open Meetings Law, claiming that the Senate failed to provide adequate public notice that SCR-48 was going to be considered by the Committee and that the synopsis of SCR-48 was insufficient to put them on notice that the resolution pertained to the closure of HPL Medical Center. As such, the plaintiffs alleged that the Committee's consideration and action upon SCR-48 violated Rules 13.73 and 13.75 of the Rules of Order of the Louisiana Senate and, as a result, also violated the Louisiana Open Meetings Law, La. R.S. 42:19(B), and La. Const. Art. 12, § 3. Plaintiffs also alleged that SCR-48 improperly amended La. R.S. 17:1518.1 and, therefore, is unconstitutional because it failed to meet the requirements of La. Const. Art. 3 for legislative instruments that amend or enact law.

Plaintiffs sought a declaration that SCR-48 is null and void because it was passed by the Legislature in violation of the Open Meetings Law; statutory damages of $100 per violation pursuant to La. R.S. 42:28 ; and a preliminary and, in due course, a permanent injunction, along with attorney fees, costs, and damages, enjoining defendants from applying, enforcing, and/or implementing the provisions of SCR-48. Plaintiffs also sought a declaration that SCR-48 was passed in violation of the Louisiana Constitution.

On June 18, 2014, Angelina Iles, Evelyn C. Cooper, Beverly Ford, Sylvia Carter, Carrie Furgerson-Stork, and all domiciliaries and citizens of Rapides Parish, Louisiana and as individuals or employees of HPL Medical Center filed a petition for intervention, joining plaintiffs in demanding same or similar relief against the defendants and adopting plaintiffs' original and amending petitions.

Following a hearing on June 23, 2014, on the plaintiffs' request for a preliminary injunction, the trial court granted the plaintiffs' request and enjoined the defendants from enforcing, applying, and/or implementing the provisions of SCR-48 and closing the HPL Medical Center. However, in accordance with La. C.C.P. art. 3612(B), the trial court suspended the enforcement of the injunction upon the defendants perfecting an appeal. The trial court signed a judgment in conformity with its ruling on July 9, 2014.

Thereafter, the defendants timely perfected an appeal, initially seeking review of the trial court's judgment with the Louisiana Supreme Court based upon the trial court's oral reasons stating that SCR-48 violated the Louisiana Constitution. The supreme court, however, dismissed the appeal, finding:

[T]he appeal is not properly before this court. Article V, § 5(D) vests appellate jurisdiction in this court in cases in which "a law or ordinance has been declared unconstitutional...." A review of the district court's judgment indicates the court merely grants plaintiffs' request for preliminary injunction to enjoin the enforcement, application and implementation of the resolution, without making any mention of the constitutionality of the resolution.
Although the district court's reasons for judgment discuss the constitutionality of the resolution, it is well-settled law that the trial court's oral or written reasons form no part of the judgment.
Because there is no declaration of unconstitutionality in the district court's judgment, there is no basis for the exercise of this court's appellate jurisdiction.

On rehearing, the supreme court transferred the appeal to this court for further proceedings. See Parker v. Senate of the State of Louisiana, 14-1816 (La. 11/14/14), 171 So.3d 906.

In a decision rendered on September 21, 2015, this court dismissed the appeal, finding:

[B]ecause the activity that the plaintiffs sought to enjoin has already occurred, and the record is devoid of any evidence that the parties expressly agreed to submit the case for a final decision on the merits at the hearing on the request for a preliminary injunction, the matter before this court is moot, and it is inappropriate for this court to comment on the trial court's preliminary statements in its reasons for judgment regarding violations of the open meetings law and the constitutionality of SCR-48. [Footnote omitted.]

Parker v. Senate of the State of Louisiana, 15-0048, p. 4 (La. App. 1st Cir. 9/21/15), 2015 WL 5547476 (unpublished opinion).

Thereafter, defendants filed a motion for summary judgment in the trial court as to the claims asserted by plaintiffs and intervenors, asserting that the validity of SCR-48 in their claim for injunctive relief had been rendered moot by the fact that HPL Medical Center had been closed. Defendants further asserted that SCR-48 was properly considered and adopted by the Legislature and the re-opening of HPL Medical Center was impossible.

On April 18, 2016, plaintiffs filed a motion for partial summary judgment, asserting that they are entitled to judgment as a matter of law because the enactment of SCR-48 was in violation of the Louisiana Open Meetings Law and the Louisiana Constitution and therefore, is null and void, entitling plaintiffs to a permanent injunction enjoining the enforcement of SCR-48.

Following a hearing on the cross-motions for summary judgment, the trial court signed a judgment granting in part plaintiffs' motion for partial summary judgment and denying defendants' motion. The trial court granted the plaintiffs' motion as to the portion seeking a declaration that the enactment of SCR-48 violated the Louisiana Open Meetings Law and the Louisiana Constitution. The trial court specifically found that SCR-48 violated the Louisiana Open Meetings Law and the Louisiana Constitution and declared SCR-48 null and void. The trial court, however, denied as moot the portion of plaintiffs' motion seeking the issuance of a permanent injunction.

The defendants directly appealed to the Louisiana Supreme Court on the basis of the district court's declaration that SCR-48 is unconstitutional. On January 13, 2017, the supreme court dismissed the appeal, finding that they were deprived of appellate jurisdiction pursuant to La. Const. Art. V, § 5 (D) because the underlying dispute forming the basis for the constitutional challenge was rendered moot. Parker v. Senate of the State of Louisiana, 16-1690 (La. 1/13/17), 215 So.3d 244. The defendants thereafter filed a timely application for rehearing, requesting that the appeal be transferred to the First Circuit Court of Appeal for review of any non-constitutional claims that may remain viable. On February 24, 2017, the supreme court granted a rehearing and transferred the appeal to the First Circuit, stating:

[W]e find the district court's June 15, 2014 judgment may have some collateral impact on non-constitutional aspects of the case, such as plaintiffs' ability to recover attorney fees.

Parker v. Senate of the State of Louisiana, 16-1690, p. 1 (La. 2/24/17), 210 So.3d 270.

Defendants now appeal from the trial court's judgment, asserting that the trial court erred in finding that the adoption of SCR-48 violated the Louisiana Open Meetings Law. Plaintiffs and intervenors also filed an answer to the appeal, seeking costs and attorney's fees for work performed on appeal.

DISCUSSION

Louisiana Revised Statute 42:19, known as the Louisiana Open Meetings Law, generally provides, in pertinent part:

A. (1)(b)(i) All public bodies, except the legislature and its committees and subcommittees , shall give written public notice of any regular, special, or rescheduled meeting no later than twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, before the meeting. [Emphasis added.]
(b)(ii)(aa) Such notice shall include the agenda, date, time, and place of the meeting. The agenda shall not be changed less than twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, prior to the scheduled time of the meeting.

Thus, the plain language of subpart A clearly excludes the legislature and its committees and subcommittees from the general notice requirements applicable to the meetings of other public bodies. Rather, La. R.S. 42:19(B) specifically governs legislative notice under the Louisiana Open Meetings law, providing:

Reasonable public notice of day to day sessions of either house of the legislature, and of all matters pertaining to such meetings, including but not necessarily restricted to the content of notices, quorums for the transaction of business, proxy voting, viva-voce votes, and recordation of votes, shall be governed by the provisions of the Louisiana Constitution, the rules of procedure of the Senate and the House of Representatives, and the Joint Rules applicable to both houses. Reasonable public notice of meetings of legislative committees and subcommittees shall be given in accordance with such rules as are adopted by the respective houses for the purpose.

Pursuant to the authority granted by La. R.S. 42:19(B), the Senate adopted Senate Rules of Order. Rule 13.73, entitled "Notice of committee meetings during sessions," provides, in pertinent part:

A. Prior to each meeting of his committee, the chairman of each standing committee shall post on bulletin boards which shall be maintained on the floor of the Senate and in the Memorial Halls of the Senate and the House, and also at the door to the committee room in which the meeting is to be held, the following information: ... (5) the proposed agenda, including the bills, by number, which the committee proposes to consider at the meeting, though the committee shall not be bound to consider all bills enumerated and may consider bills other than those enumerated, as it deems fit ... and (7) any other information which the chairman deems pertinent. Such notices shall be posted for each meeting as soon as practicable, but not later than 1:00 p.m. of the day preceeding the meeting day. [Emphasis added.]

Additionally, Rule 13.76, entitled "Agenda," provides:

A. Immediately before each meeting, the chairman shall cause to be prepared a formal agenda, which shall include all business to come before the committee, in the order of its consideration.
B. The agenda shall adhere as closely as possible to the list of matters to be considered contained in the meeting notice, but this list shall not be binding on the committee . Copies of the agenda shall be distributed to each member before the meeting is called to order. [Emphasis added.]

Accordingly, the notice requirements contained in the Senate Rules require that the chairman of the committee post on specified bulletin boards notice of a Senate committee meeting no later than 1:00 p.m. of the day preceding the meeting day. The meeting notice shall contain a proposed agenda, including the bills by number, but the committee is not bound to consider all bills listed and may consider bills other than those listed on the proposed agenda. Furthermore, the rules permit the agenda to be revised at any time up until immediately before the meeting, when a formal agenda must be prepared and distributed to members of the committee.

In the instant case, the record demonstrates that the Committee posted a Notice of Meeting for its April 2, 2014 meeting on the evening of March 31, 2014. According to the affidavit of Koepp, the Committee posted the Notice of Meeting on the internet and then immediately thereafter on bulletin boards located within the state capitol. The Notice of Meeting contains a proposed agenda, which omits reference to SCR-48. However, a revised agenda, prepared the day before the scheduled meeting, lists SCR-48 by number and brief description. According to Koepp, this revised agenda was posted on the internet on the same afternoon it was prepared and then immediately thereafter on bulletin boards located within the capitol. Koepp further stated that the revised agenda was also posted outside of the Committee hearing room on the morning of the meeting at or before 9:00 a.m.

Accordingly, from our review of the record, we find that the Senate complied with its Rules of Order in timely providing public notice of SCR-48's consideration and as such, complied with the Louisiana Open Meetings Law.

CONCLUSION

For the foregoing reasons, we reverse the portion of the trial court's judgment granting in part plaintiffs' motion for partial summary judgment, which sought a declaration that the enactment of SCR-48 violated the Louisiana Open Meetings Law, and finding that SCR-48 did, in fact, violate the Louisiana Open Meetings Law. We also reverse the portion of the trial court's judgment declaring SCR-48 null and void. Furthermore, because we reverse the trial court's judgment in favor of plaintiffs, we deny plaintiffs' and intervenors' answers to the appeal seeking costs and attorney's fees for work performed on appeal. All costs of this appeal, in the amount of $3,860.50 are assessed to plaintiffs, Edwin Ray Parker, Kenneth Brad Ott, and American Federation of State, County and Municipal Employees, Council 17.

REVERSED; ANSWERS TO APPEAL DENIED.

      The agenda indicates that it was revised at 4:07 p.m., but the affidavit of Glenn Koepp, Secretary of the Senate, states that the revised agenda was posted at approximately 4:19 p.m.

      The trial court signed a separate judgment on November 16, 2016, awarding plaintiffs attorney's fees based upon its earlier judgment finding defendants violated the Louisiana Open Meetings Law. The November 16, 2016 judgment is currently pending review in this court under docket number 2017 CA 0228.

      Plaintiffs do not contest the validity of the Senate Rules of Order or assert that the Rules themselves are unconstitutional. Rather, as stated by counsel at the hearing of this matter before the trial court, plaintiffs contend that the defendants violated the Rules.


author: MCCLENDON, J.

text:
    COVINGTON GOLF AND RECREATION PARK, INC. v. Betty Keating, wife of/and Thomas E. KETCHUM, Jr.
    2017 CA 0297
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 07, 2018
    Joseph E. Ward, Jr., Covington, Louisiana, Counsel for Plaintiff/Appellant Covington Golf and Recreation Park, Inc.
    T. Gregory Schafer, New Orleans, Louisiana, Counsel for Defendant/Appellee Sara Fish Longenecker, Executrix Of the Estate of Geoffrey H. Longenecker
    BEFORE: McCLENDON, WELCH, HIGGINBOTHAM, THERIOT, AND HOLDRIDGE, JJ,.
   MCCLENDON, J.

A corporation seeks review of a judgment following a trial on the merits that dismissed its claims against an attorney. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Covington Golf and Recreation Park, Inc. was incorporated in 2004 by Charles Gambino, Thomas E. Ketchum, Jr., and Betty Keating, for the purpose of opening a golf driving range. The only directors for the corporation were Mr. Gambino and Mr. Ketchum. Mr. Gambino served as the corporation's president, while Mr. Ketchum served as its secretary/treasurer and was the sole registered agent for service of process. Mr. Ketchum's home address was designated as Covington Golf's registered office and principal place of business.

Covington Golf leased property owned by Mr. Ketchum and his wife, Betty Keating, under a ten (10) year commercial property lease. The lease, which contained an option to purchase, listed Mr. Ketchum's home address as the mailing address of the corporation.

At all pertinent times, attorney Geoffrey H. Longenecker represented Mr. Ketchum and Ms. Keating. On April 2, 2008, Mr. Longenecker sent Covington Golf a letter notifying the corporation that it had violated the terms, conditions, and obligations of the commercial lease by failing to pay rent for three months. The letter, signed by Mr. Longenecker, stated that he represented Mr. Keating and Ms. Ketchum and notified Covington Golf that the corporation had ten (10) days to cure the deficiencies listed or its lease would be terminated. The notice of deficiency was addressed to Covington Golf and delivered, via certified mail and hand delivery, to Mr. Ketchum's home address. Mr. Ketchum signed the certified mail receipt.

Mr. Ketchum and Ms. Keating subsequently filed suit against Covington Golf based on its violation of the commercial lease. On June 25, 2008, Mr. Ketchum, as registered agent for service of process of Covington Golf, was personally served with a copy of the petition entitled "Betty Keating, wife of/and Thomas E. Ketchum, Jr. v. Covington Golf & Recreation Park, Inc." No answer was filed to this petition.

The trial court subsequently entered a default judgment against Covington Golf. The notice of judgment was served on Covington Golf, again through Mr. Ketchum, on August 15, 2008.

On October 8, 2008, a notice to vacate, which demanded that the property be vacated within five (5) days, was posted on the leased premises of Covington Golf. In response, Mr. Gambino on behalf of Covington Golf sought a preliminary and permanent injunction and a judgment declaring that the lease was valid and enforceable and that it was not required to vacate the premises.

Covington Golf subsequently filed a first supplemental and amending petition, adding Mr. Longenecker as a defendant, and alleging that Mr. Keating, Ms. Ketchum, and Mr. Longenecker had engaged in a conspiracy to commit fraud in filing suit against Covington Golf and obtaining a default judgment cancelling the commercial lease. Covington Golf alleged that at no time did Mr. Ketchum, as agent of Covington Golf, ever advise any other officer or director that suit had been filed. Covington Golf alleged that the acts of Mr. Ketchum, Ms. Keating, and Mr. Longenecker in having the demand letter mailed solely to Mr. Ketchum and obtaining a default judgment by serving the suit solely on Mr. Ketchum, without forwarding copies to any other officers or directors, constituted fraud. Moreover, Covington Golf alleged that the acts of Mr. Ketchum and Ms. Keating constituted a breach of contract and a breach of a fiduciary duty. Covington Golf alleged that the defendants' acts caused it damage, including the loss of its lease and option to purchase.

Mr. Ketchum and Mrs. Keating later declared bankruptcy, and they were thereafter dismissed without prejudice from the suit. Mr. Longenecker subsequently died on January 13, 2009, and his estate was substituted in his place as a party defendant.

On September 7, 2016, this matter went to trial solely against Mr. Longenecker's estate. At trial, Covington Golf maintained that Mr. Longenecker conspired with and assisted Mr. Ketchum in intentionally breaching his fiduciary duty and defrauding Covington Golf. Specifically, Covington Golf averred that Mr. Gambino, through the acts of the defendants, was completely "left in the dark" concerning the financial situation at Covington Golf.

At trial, Mr. Gambino testified that Covington Golf operated successfully for several years. During this time, Mr. Ketchum handled all financial matters for the corporation, including paying bills, insurance and taxes, while Mr. Gambino operated the driving range, pro shop, and taught golf lessons. According to Mr. Gambino, Mr. Ketchum would come by the office on a daily basis to pick up the cash and the receipts, while credit cards were automatically sent to Mr. Ketchum's designated bank account. Under this arrangement, Mr. Ketchum paid all the bills, including the rent that was due to him under the lease agreement.

Moreover, Covington Golf notes that on May 2, 2007, Mr. Gambino noticed a special meeting of the officers and board of directors to be held on May 18, 2007 at the law office of Ward and Condrey. In that notice, Mr. Gambino specifically indicated that he wanted to discuss the status of corporate tax filings and review the corporation's books and records-particularly the incoming expense statements. He also wanted to discuss plans for the development of the properties to which the corporation had a lease and option to purchase. Mr. Ketchum did not attend the meeting. Mr. Gambino called another special meeting of the officers and board on April 23, 2008 to discuss similar issues at the law office of Ward and Condrey. Again, Mr. Ketchum did not attend that meeting.

Covington Golf alleged that Mr. Gambino saw Mr. Ketchum on a regular basis between 2005 and 2007, and Mr. Gambino testified that there was never a discussion about any problems with Covington Golf owing rent to Mr. Ketchum. Covington Golf noted that from April through June 2008, Mr. Gambino testified that Mr. Ketchum never made any mention to Mr. Gambino that Covington Golf was behind on rent or any other obligation, though Mr. Ketchum appeared at the clubhouse daily to pick up cash receipts.

Mr. Gambino testified that he was unaware of issues related to the financial conditions at Covington Golf until October 8, 2008, when he discovered a "Notice to Vacate" taped to the clubhouse door. Mr. Gambino indicated that a few days prior to receiving the notice, Mr. Longenecker had appeared at Covington Golf instructing Mr. Gambino that "he should leave the property" and an argument ensued. Mr. Gambino testified that the heated discussion had more to do with Mr. Longenecker's handling of a personal injury case for Mr. Gambino's wife and stepson. According to Mr. Gambino, at no point did Mr. Longenecker advise him that he represented Mr. Ketchum in a dispute over rent, that he had filed a lawsuit against Covington Golf, that he secured a judgment against Covington Golf, and that the appellate delays were about to run in a matter of days. Rather, Mr. Gambino noted that all pleadings were served by Mr. Longenecker to his client, Mr. Ketchum, until he received the October 8, 2008 notice to vacate, which was specifically addressed to Mr. Gambino.

Following the trial, the trial court took the case under advisement. The trial court subsequently issued reasons for judgment, wherein it concluded that plaintiff failed to meet its burden of proof to show that Mr. Longenecker "had information that Mr. Ketchum and/or Ms. Keating intended to accomplish all notices in this litigation in such a fashion that Mr. Gambino never had actual notice of the lawsuit and the ultimate eviction." The trial court subsequently signed a judgment dismissing Covington Golf's case with prejudice on September 29, 2016.

In its appeal, Covington Golf raises the following lone assignment of error:

The Trial Court committed error by requiring plaintiff to establish proof of actual knowledge on the part of Longenecker that his client, Keating, had not forwarded a required notice of deficiency, or notice of suit, or notice of default to Gambino. The law establishes that Longenecker's knowledge and liability may be proved by circumstantial evidence.

DISCUSSION

On appeal, Covington Golf avers that there is no question that Mr. Ketchum owed a fiduciary duty to the corporation and its shareholders, including a duty to deliver the notice of default and service of process to Covington Golf. Covington Golf asserts that Mr. Ketchum intentionally failed to do so, obtaining a judgment against Covington Golf through fraud.

Moreover, Covington Golf asserts that Mr. Longenecker was also liable for his own tortious conduct for his participation in this scheme. See LSA-C.C art. 2324. While Covington Golf recognizes that our courts have adopted the traditional majority view that an attorney does not owe a legal duty to his client's adversary when acting on his client's behalf, that rule does not apply if the attorney engages in intentional tortious conduct such as the knowing violation of a prohibitory statute. See Penalber v. Blount, 550 So.2d 577, 578 (La. 1989).

In Penalber, the supreme court recognized that "[a] non-client, therefore, generally cannot hold his adversary's attorney personally liable for either malpractice or negligent breach of a professional obligation. The intent of this rule is not to reduce an attorney's responsibility for his or her work, but rather to prevent a chilling effect on the adversarial practice of law and to prevent a division of the loyalty owed a client." Id., 550 So.2d at 581. "An attorney's duty is to zealously represent his client. To accomplish this obligation, adversarial counsel must not be hampered by fear of personal liability for negligently injuring his client's opponent. The attorney's paramount duty is to his client. As such, not even the Rules of Professional Conduct create actionable duties for negligent injury of a client's adversary or negligent breach of professional obligations which might run in favor of his client's adversary." Id. Nevertheless, "[i]ntentionally tortious actions, ostensibly performed for a client's benefit, will not shroud an attorney with immunity. Consequently, even though an attorney does not generally owe a duty to his client's adversary, under the broad ambit of LSA-C.C. art. 2315, an attorney may be held personally accountable for his intentional tortious conduct." Id. at 582.

Covington Golf avers that its evidence established that Mr. Longenecker facilitated Mr. Ketchum's breach of fiduciary duty and fraud. Covington Golf asserts that Mr. Longenecker knew that Mr. Ketchum owed a fudiciary duty to the company and that Mr. Ketchum was obligated to provide the company with the notice of default and service of process. Covington Golf contends that all the circumstances indicate that Mr. Longenecker was the architect of the fraudulent scheme to obtain a judgment without Mr. Gambino's knowledge. In this regard, Covington Golf alleges that Mr. Longenecker personally appeared at Covington Golfs office and confronted Mr. Gambino, seeking to have Covington Golf voluntarily vacate the premises without informing Mr. Gambino of any of the filings made in furtherance of the default judgment.

Covington Golf also argues that the trial court erred in placing the burden on it to prove actual knowledge on the part of Mr. Longenecker that his client, Mr. Ketchum, intended to keep information concerning notice, the lawsuit, the default judgment, and cancellation of the lease from Mr. Gambino. Covington Golf asserts that no such proof was required. Rather, Covington Golf notes that while evidence of a conspiracy can be shown by actual knowledge of both parties or overt actions with another, it can also "be inferred from the knowledge of the alleged co-conspirator of the impropriety of the actions taken by the other co-conspirator." Boudreaux v. Jeff, 03-1932 (La.App. 1 Cir. 9/17/04), 884 So.2d 665, 672. Covington Golf asserts that it is clear that Mr. Longenecker carefully calculated each step in the process and that his "silence or inaction" until the day after the appeal delay had expired is indicative of his involvement in the conspiracy. Covington Golf asserts that this court should review the evidence de novo because the trial court employed an erroneous burden of proof.

However, in its written reasons for judgment the trial court never required Covington Golf to show that Mr. Longenecker had "actual knowledge" of Mr. Ketchum's intentions. Rather, the trial court, in finding that Covington Golf failed to meet its burden by a preponderance of the evidence, indicated that Covington Golfs two chief witnesses admitted that they had no evidence that Mr. Longenecker "had information that Mr. Ketchum and/or Ms. Keating intended to accomplish all notices in the litigation in such a fashion that Mr. Gambino never had actual notice of the lawsuit and the ultimate eviction." Moreover, the trial court indicated that "[w]hile a circumstantial case could be made that Mr. Longenecker could have or might have had certain information, [Covington Golf] failed in [its] burden of establishing by a preponderance of the evidence that such information existed." This indicates that the trial court did consider circumstantial evidence, but the trial court concluded that such evidence was not sufficient to meet plaintiff's burden of proof. Since there is no evidence that the trial court's fact finding was interdicted by error, de novo review is not warranted. Therefore, we must review this case under the manifest error standard.

Under the manifest error standard of review, a reviewing court may not merely decide if it would have found the facts of the case differently. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, (La. 12/8/15), 193 So.3d 1110, 1115. Rather, to reverse a trial court's factual conclusion, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong.

Stobart v. State through Dep't of Transportation and Dev., 617 So.2d 880, 882 (La. 1993). Reasonable evaluations of credibility and inferences of fact should not be disturbed, even if the appellate court feels that its own evaluations and inferences are as reasonable. Hayes, 193 So.3d at 1116.

The trial court found that Covington Golf failed to meet its burden of proof by a preponderance of the evidence. Following our review of the record and in light of our standard of review, we affirm the trial court's factual findings. See Guillory v. Lee, 09-0075 (La. 6/26/09), 16 So.3d 1104, 1117 ("[O]n review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently.") While the circumstances might arouse suspicion as to Mr. Longenecker's participation in a conspiracy, we are unable to conclude that the trial court lacked a reasonable basis for its decision. Accordingly, Covington Golf's assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we are constrained to affirm the trial court's judgment dismissing Covington Golf's suit against Mr. Longenecker's estate. Costs of this appeal are assessed to appellant, Covington Golf and Recreation Park, Inc.

APPEAL MAINTAINED; JUDGMENT AFFIRMED.

Welch J. dissents and assigns reasons.

Theriot J. dissents and concurs with J. Welch reasons.

WELCH, J., dissents.

I respectfully disagree with the majority's decision in this case. The trial court manifestly erred in finding that Covington Golf failed to meet its burden of proof because the record before us is replete with evidence demonstrating Mr. Longenecker's active and knowing involvement in a fraudulent conspiracy, which was aimed at ensuring that Covington Golf's lease was cancelled and hence, Covington Golf was prevented from exercising the option in its favor to purchase the property subject to the lease. Therefore, I would reverse the judgment of the trial court and render judgment in favor of Covington Golf.

There is no dispute that Mr. Longenecker was aware that his client, Mr. Ketchum, was the agent for service of process and the corporate secretary for Covington Golf, the defendant in the lease action. Thus, Mr. Longenecker had knowledge that the petition he filed on behalf of Mr. Ketchum to terminate Covington Golf's lease would in fact be served upon Mr. Ketchum. In addition, the confirmation of default judgment presents an additional absurdity which could not have escaped Mr. Longenecker's attention. There, Mr. Longenecker and Mr. Ketchum appeared in court to confirm a default judgment in favor of Mr. Ketchum individually, wherein Mr. Ketchem was the agent for the defendant against whom the default judgment was being taken for failure to file a timely response. Mr. Longenecker would have been aware that the failure of Mr. Ketchum, in his role as the secretary of and agent for service of process for Covington Golf, to act or ensure that the necessary exceptions and/or answer were filed on behalf of Covington Golf, would result in a default judgment. Mr. Longenecker, thus, had a conflict of interest and placed himself in an unusual and inappropriate ethical circumstance. As such, Covington Golf met its burden of proving Mr. Longenecker's participation in a conspiracy to commit fraud and the trial court manifestly erred in concluding otherwise.

Thus, I respectfully dissent.

      There is no evidence in the record of any notices being sent to Mr. Gambino.

      Louisiana Code of Civil Procedure article 2004 states:
      A. A final judgment obtained by fraud or ill practices may be annulled.
      B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
      C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.
      In this case, there is no indication that appellant filed a petition to annul the default judgment rendered against Covington Golf based on fraud or ill practice.

      Mr. Ketchum also died in 2009. It does not appear that either Mr. Ketchum or Mr. Longenecker were deposed prior to their deaths.

      Covington Golf asserts that the appellate delays expired on October 7, 2008, or one day prior to the eviction notice first being brought to Mr. Gambino's attention.

      After Covington Golf sought to appeal, this court issued a rule to show cause why the appeal should not be dismissed because the judgment lacked appropriate decretal language indicating in whose favor and against whom the judgment was rendered. The trial court subsequently rendered a new judgment on March 14, 2017, which contained the appropriate decretal language. Accordingly, we maintain Covington Golf's appeal.

      Louisiana Civil Code article 2324A provides:
      He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.


author: AMY, Judge.

text:
    Randall VINCENT and Karen Vincent v. CITY OF IOWA
    17-951
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 2018
    Jerry J. Falgoust, Falgoust and Caviness, L.L.P., 505 S. Court Street, Opelousas, LA 70571-1450, (337) 942-5812, COUNSEL FOR DEFENDANT/APPELLANT: City of Iowa
    Gregory P. Marceaux, Marceaux Law Firm, LLC, 2901 Hodges Street, Lake Charles, LA 70601, (337) 310-2233, COUNSEL FOR PLAINTIFFS/APPELLEES: Randall Vincent Karen Vincent
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   AMY, Judge.

The plaintiffs filed suit after a City sewerage line discharged into their home in 2014, causing damage to their home as well as their personal property. Although the City provided for certain repairs to the home, as well as relocation expenses while their home was being repaired, the City denied their remaining claim. It instead challenged the extent of the plaintiffs' loss and asserted that the plaintiffs failed to properly mitigate their damages. The trial court found in the plaintiffs' favor as to a first incidence of sewage discharge, awarding damages for certain contents of the home, mental anguish, and loss of use. The trial court denied damages associated with a second sewage discharge event. The City appeals. The plaintiffs answer the appeal, seeking additional damages. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiffs, Karen and Randall Vincent, allege that on February 2, 2014, they discovered sewage overflowing from a toilet into their Iowa home while preparing for a Super Bowl Sunday gathering. The discharge was subsequently found attributable to blockage in the City of Iowa's sewerage line.

Mrs. Vincent explained that, while preparing for her party, she noticed that her feet had become wet and that she subsequently discovered the sewage waste coming from a toilet in what appeared to her to be a "volcano[.]" The record indicates that the sewage flowed into multiple rooms of the home and reached accumulations of up to two inches. Mr. Vincent was able to stop the overflow by releasing a "washout cap" outside of the home. He explained, however, that once the cap was opened, "[e]verything started gushing out there on the ground. The toilet paper, fecal matter ... you can just about imagine."

With the overflow stopped, the plaintiffs, along with family members, immediately began to remove the accumulation of what was identified as raw sewage from the interior of the home that evening, doing so until approximately midnight. The City was contacted the following day, with its Public Works Director visiting the home. Although testimony indicated that an obstruction in the line was identified and remedied, the plaintiffs alleged that a second overflow occurred on February 5, 2014. Mrs. Vincent explained that she discovered the second overflow, which purportedly occurred in the master bathroom.

A few nights later, the plaintiffs, along with their daughter and three grandchildren, relocated to two adjoining rooms at a nearby hotel due to conditions in the home and so that repairs could be made. With regard to the latter, a contractor began working in the home, replacing flooring, replacing sheetrock, and painting the interior. During that period of construction, the plaintiffs stored much of the home's contents in a storage "pod" placed on their driveway for that purpose.

The plaintiffs and their family returned to their home from the hotel after approximately two months. By that time, the City had compensated the plaintiffs for their hotel stay and for related living expenses. Additionally, the City approved the payment of approximately $29,000.00 in repairs to the home. However, the City rejected the plaintiffs' claim for damages associated with the second discharge, that allegedly occurring in the master bathroom on February 5, 2014.

Mr. and Mrs. Vincent filed this matter in January 2015, alleging that the City's negligence in the maintenance and inspection of the sewerage system was the sole cause of the occurrence. The plaintiffs sought an award for property damage, depreciation of property, mental anguish and emotional distress, loss of earnings, rental expenses, and other unnamed damages. Following a two-day bench trial, the trial court found in favor of the plaintiffs, concluding that "there's no doubt that the City of Iowa is responsible for the February 2nd, '14 overflow and the ... backflow into [the] house." However, the trial court denied certain claimed damages, but awarded damages as follows: $45,699.00 for contents damages; $75,000.00 for mental anguish damages ($35,000.00 to Mr. Vincent and $40,000.00 to Mrs. Vincent); and $60,000.00 for loss of use. The trial court imposed the latter loss of use award with a $15,061.00 credit in favor of the City for "loss of use damages previously paid[.]" The trial court denied an award associated with the alleged February 5, 2014 overflow.

The City appeals, asserting that the trial court: 1) abused its discretion in awarding a total of $75,000.00 for mental anguish; 2) abused its discretion in awarding $60,000.00 for loss of use of the residence (with a $15,061.00 credit for hotel expenses previously paid); and that it 3) was manifestly erroneous in its award of $45,699.00 for household property based upon what it considers were unreliable value estimates. The plaintiffs answer the appeal, seeking an additional $8,411.51 for replacement items purchased and $31,256.00 for further damages associated with the repair of the home.

Discussion

Mental Anguish Damages

In its first assignment of error, the City questions whether the plaintiffs "experienced trauma as a result of the property damage and, if so, did the Trial Court's finding that Randall and Karen Vincent were entitled to awards for mental anguish of $35,000[.00] and $40,000[.00] respectively, represent an abuse of discretion[.]"

As a starting point, we note that an award of damages for mental anguish arising from property damage is limited to situations in which property is damaged: 1) by a tortfeasor's "intentional or illegal act"; 2) by an act "for which the tortfeasor will be strictly or absolutely liable"; 3) by an act "constituting a continuing nuisance"; or 4) "when the owner is either present or nearby and suffered a psychic trauma as a direct result." Zaveri v. Husers , 16-866, 16-867, p. 21 (La.App. 3 Cir. 6/21/17), 224 So.3d 389, 404-05 (quoting Holzenthal v. Sewerage & Water Bd. of New Orleans , 06-0796, p. 39 (La.App. 4 Cir. 1/10/07), 950 So.2d 55, 79, writ denied , 07-0294 (La. 3/30/07), 953 So.2d 71 ), writ denied , 17-1286 (La. 11/6/17), 229 So.3d 475. As related above, it is uncontested that the plaintiffs in this case were in their home, witnessing and personally addressing the offending overflow of sewage into the home.

In Zaveri , 224 So.3d 389, a panel of this court explained that, although mental anguish damages may be appropriate in cases involving property damage, the complained-of anguish must constitute an actual mental injury. Mere worry associated with consequences of property damage is insufficient. Id. However, there is no requirement that associated medical treatment be pursued by the plaintiff. Id. Turning to review of the award in this case, we are mindful that "the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury." La.Civ.Code art. 2324.1.

The City argues the circumstances of Mr. and Mrs. Vincent collectively in its unified assignment regarding the mental anguish awards. The City acknowledges in its brief that "[e]xperiencing sewage backing up into one's residence is undoubtedly a traumatizing experience." However, in arguing that the quantum awarded is excessive, the City suggests, in part, that Mr. and Mrs. Vincent experienced the difficulties in their home for a finite period, returning to the home after two months of renovation. Thus, the City contends, if any such award is appropriate in this case, this court should fashion an award in keeping with the $2,500.00 award for mental anguish found appropriate in Thibodeaux v. St. Mary Parish Sewer District 07 , 09-1466 (La.App. 1 Cir. 2/12/10), 2010 WL 528474 (unpublished opinion).

On review, however, we find that the trial court's awards to both Mrs. and Mr. Vincent are supported by the record. We first address the $40,000.00 award to Mrs. Vincent. In fashioning that award, the trial court referenced Mrs. Vincent's detailed testimony at trial in which she related her experiences as follows:

There is mental anguish in this case. I kind of let Ms. Vincent go because she was suffering up here on the stand. And she probably needed to vent some. Let her go. Get it off her chest. I'm not going to say that that is what controls or I'm grounding this decision on, but I could see her pain and-still today. S[h]e did mention it to her doctors during her visits and the doctors, I think Ms. Vincent said, may have even increased certain medications because of what happened.

In her testimony, Mrs. Vincent explained that she previously had great pride in the presentation and cleanliness of her home, which was constructed following the destruction of the family's prior home in the same location by Hurricane Rita. She described her discovery of the sewage overflow with detail, reporting that "it was just going everywhere[ ]" and that she "couldn't get it to stop." She explained that the family set about cleaning the overflow, which she stated "reeked" and which, in some areas, "was going over [her] foot[.]" In addition to the hours that the family spent cleaning the home that evening, both she and her husband continued to attend to matters at the home during the two months that repairs were made to the affected areas of the home. As to the scope of the problem, testimony and documentary evidence indicate that the sewage spread from the originating bathroom into two bedrooms, the great room, the foyer, the sunroom, the breakfast area, the kitchen, and the dining room. Given the ongoing repairs, the six-member family was relocated from their 3,000 square foot home to two-adjoining hotel rooms for two months.

When asked how the occurrence had affected her, Mrs. Vincent testified that:

When it was all first going on it was a disbelief. It was like it wasn't going on. It was like an awful dream. Then when we w[ere] packing up stuff everybody was trying to help and everybody was making fun, you better be careful ... because it was, it was my pieces, my antique pieces. A lot of glass. Pieces did get broke and I'd cringe. Everything-all I could see, I guess because it hadn't-I'm still not ... I'm still not over [Hurricane] Rita ... So going through this, it was like we w[ere] going all back through it because it was hell ... I just could not deal with it. And when I started losing the fish, the aquariums[ ] and the pieces were just-you know, you'd think, look how old they are and once they hit my hands they're gone. You know, all th[ose] years just down the tubes.

As addressed below, Mrs. Vincent further testified that she felt that the home continued to have an odor, one which she identified as a "musk" and explained that she now apologizes to guests to the home. Mrs. Vincent explained that, although her home had previously been "pristine," she now felt that there was "filth" everywhere, and that she lost interest in maintaining the home as she once did. When asked whether she was "suffering from depression[,]" Mrs. Vincent responded: "Oh, yeah." On this point, Mrs. Vincent denied having sought medical attention strictly related to this incident, but that "it [was] rolled over inside" appointments for her pre-existing medical conditions. As identified by the trial court, Mrs. Vincent explained that her physician "went up on some of [her] medicine, things like that[.]"

Other witness accounts supported Mrs. Vincent's testimony. Mr. and Mrs. Vincent's son, Randall Vincent, Jr., responded "Oh, yes[ ]" when asked whether the incident affected his mother "emotionally[.]" In particular, he explained that Mrs. Vincent would "just start crying" upon the removal of antique furniture from the home and into the storage pod. He stated that: "Oh, man, carrying stuff out, seeing where the old finishes of the wood was just warping and wrinkling, coming off. She'd just start crying. You know ... it's a collection, her hobby. That's what she loved to do." Mr. Vincent explained that his wife was "very depressed at times" and that "[s]he'd brush her hair and, you know, large amounts of hair would come out from the stress." Also, when asked to describe how Mrs. Vincent was affected, her daughter-in-law, Ashley Nicole Cormier, explained that:

Her-everything was flipped upside down. They didn't know when they were going to be able to get back into their home. She lost a lot of things. She knew that she-she knew she was going to lose them. It was upsetting. She was depressed. She cried a lot. I know it fluctuate [sic] her blood pressure. She stayed with headaches. She kind of got quiet and shut down. She didn't want to talk about anything.

Mrs. Cormier further explained that Mrs. Vincent "would get headaches and get so stressed out that she would vomit."

Turning to the award of $35,000.00 to Mr. Vincent, the transcript indicates that he too testified regarding his and the family's initial efforts in cleaning the sewage as well as his after-hours work to address the ongoing problems at the home. Mr. Vincent explained that, in the days following the occurrence, he "[c]ontinued with cleaning trying to get as much of this liquid up ... once you walk across this wood floor it would seep up between the cracks and ... create little puddles and you'd have to mop that up or suck it up with ... the shop-vac I had." Mr. Vincent noted that the liquid worked its way underneath the walls and, in the kitchen, underneath the cabinets. He explained that the family initially stayed in the home at night, but that it "reeked" or had a "raw sewage smell[.]" He stated that they "opened up the windows in the house to try to relieve as much of the smell as we could." As explained above, the six-member family thereafter moved into two adjoining rooms at an area hotel. Describing himself as a "creature of habit[,]" Mr. Vincent explained that:

Well, without saying anything bad about the hotel, the hotel is a great hotel, but it's not like living at home. It was terrible. You couldn't sleep, there was a lot of noise up and down the hallways at night, you know, contractors in there, you didn't sleep as well, it's uncomfortable,[ ] it's not like being in your own bed. You think of staying in a hotel, you're going on a vacation somewhere and you're enjoying yourself, but this was not very enjoyable at all.

He further noted that the hotel stay disrupted the family's eating habits and that they "ate a lot of fast food." When asked whether the period was stressful, Mr. Vincent responded that:

Oh, it was very stressful. You know, trying to deal with staying in a hotel, getting foods every night, you know, feeding every one at night, not sleeping very well, dealing with the rigors of having to go to work every day and then come home and work in the house, clean, and clean up behind the construction workers, and doing my best to disinfect it and try and help kill the smell in the house.[ ]

As she did with Mrs. Vincent, Mrs. Cormier testified as to the effects of the occurrence on Mr. Vincent. She explained that:

For a man that has a routine every day, he gets up, he goes into work an hour and a half early, stops by McDonald's every day and gets a [C]oke, and if he does not show up they call. He was put in a hotel for three months. He didn't sleep, not good anyway. He got ulcers in his mouth. He can hardly talk whenever that happens, stayed like that for several months. It's hard-it was hard for him to eat.

Mr. Vincent also addressed his condition, explaining to the trial court that:

When I get under stress I develop mouth ulcers and I can tell you it's very miserable, because you can't eat anything with-with gravy or a lot of salt because of burns-burns it like dickens. And when you get them on the inside of your cheek or on your tongue it makes it difficult to talk. You know, you're constantly having to hold your-hold your hand over your mouth and stuff like this and try and talk out of one side of your mouth because it hurts.

When asked if he visited a physician due to the ulcers, Mr. Vincent explained that: "I had medication from previous encounters with [the ulcers], but also I had to talk to him about maybe increasing or giving me something a little bit stronger because they flare up and they don't go away for an extended period of time."

Also, upon being questioned whether the events had been "difficult" on her husband, Mrs. Vincent replied:

It was ... Randy's a quiet type person. It's really hard to read him, but you knew he was messed-all he kept saying, I just want to sleep. I'm tired. I want to go to bed. I'd try to get whatever to cover it, you know, and he tried to just, you know, go with the flow of things and he wasn't ... he's funny about his food. I mean, even his dinner, because he eats food food at night. We don't eat fast food. I mean, he eats his real food and then he always makes his dinner out of that and brings it the next day to work. And he doesn't do-we just don't eat fast food. Well, we can't. With our health, we just can't. But Randy has to eat food food. And it was hard on him.

In awarding damages, the trial court pointed to Mr. Vincent's physical condition and Mr. Vincent's concern regarding the disruption to his routine diet, and explained:

Mr. Vincent may have had a ... pre-existing condition of having ulcers as a result of stress. And the lawyers know, we hate to call somebody a victim, but we take our victims as we find them and he was-he suffered these ulcers. Difficulty, I can imagine that, difficulty eating and talking. Forced to eat a diet they weren't accustomed to that was unhealthy for them.

Following review, we find that the trial court's ruling is supported by the record as to both plaintiffs. Each offered testimony regarding their respective difficulties following both the occurrence in their home and the subsequent disruption in their life associated both in addressing the situation in the home as well as in their relocation. Additionally, and as demonstrated by the testimony above, the record supports a finding that each suffered physical consequences following the sewage overflow.

While the City contends that reference should be made to the $2,500.00 award made in Thibodaux , 09-1466, we find no merit in its assertion. Significantly, Thibodaux represents a case in which an appellate court rendered an award for mental anguish. The present case instead requires a deferential review by this appellate court of a trial court's award for mental anguish. Recall that this court reviews such an award for an abuse of discretion rather than de novo .

Also, this matter is factually distinguishable from Thibodaux , 09-1466. While the plaintiff in Thibodaux also found sewage spewing in her bathroom and became covered across her lower body with the substance, the resulting situation, as reported in that case, was not as comprehensive as the situation in the Vincent home. Importantly, there is no indication that the plaintiff in Thibodaux was required to relocate from her home for an extended period, that her home experienced the type of extensive property damage as seen in this case, or that the plaintiff experienced physical complaints as did Mr. and Mrs. Vincent. Rather, Thibodaux indicates that the home in that case was cleaned the following day by a professional cleaning agency.

Here, Mr. and Mrs. Vincent witnessed the overflow of raw sewage, including what was described as fecal matter, into their home. They personally removed the initial accumulation of up to two inches of the liquid, which spread through numerous rooms and moved underneath walls, baseboards, and cabinetry. After a contractor was engaged, they continued to personally attend to the cleaning and sanitizing of the home. In addition to the associated property damage, and related stressors such as the two-month relocation, both Mr. and Mrs. Vincent suffered physically, including the manifestations addressed above. For these reasons, and although toward the higher end of the permissible range for such an award under these circumstances, we find no abuse of discretion in the trial court's award of $40,000.00 in damages for mental anguish to Mrs. Vincent and $35,000.00 to Mr. Vincent.

This assignment of error lacks merit.

Loss of Use

The City next questions the trial court's $60,000.00 award for loss of use of the home. Noting that it was credited for the $15,061.00 provided to the plaintiffs for their two-month stay in the hotel as well as associated incidentals, the City suggests that the remaining figure was disproportionate to the costs of a rental home during that period.

Like the mental anguish damages discussed above, this court reviews a trial court's award for loss of use under an abuse of discretion standard pursuant to La.Civ.Code art. 2324.1. We note here that the City argues that jurisprudence indicates that loss of use and enjoyment damages are limited to the rental value of replacement property. In support of that proposition, the City references Reisz v. Kan. City S. R. Co. , 148 La. 929, 88 So. 120 (1921) and Nolan v. Liuzza , 301 So.2d 892 (La.App. 4 Cir. 1974). However, a reading of those cases does not indicate that a trial court's award for loss of use and enjoyment of property is limited as suggested by the City.

In Reisz , 88 So. at 121, the supreme court considered a case in which the plaintiff sought recovery of the rental value of property "during the period of repair[.]" The trial court did, in fact, find such an award permissible, but only up until the time the property was sold, ten days later. Id. In this case, however, loss of use was not awardable solely as special damages, but at least in part as a type of general damage.

The fourth circuit's opinion in Nolan , 301 So.2d at 893 is similarly distinguishable as that panel framed the question before it as "whether or not the owner of an automobile, temporarily deprived of its use while tort-caused damages are being repaired, may recover for that loss of use from the tortfeasor." In resolving that question in favor of the plaintiff, the fourth circuit did so in terms of economic recovery associated with costs incurred in securing a rental car during the repair period. Id. That court evaluated the award upon consideration of whether the plaintiff had demonstrated reasonable diligence in securing repair of the car. Id. Such an economically-driven special damage is not the type of damages supported by the present record.

Rather, further reference to Nolan , 301 So.2d at 894 (citations omitted) reveals the central difference between that case and this one, as the fourth circuit explained that: "The period of compensable loss of use is only 'the time required by the exercise of proper diligence to secure its repair,' and, when damage is very extensive, the time needed to determine whether the car is economically repairable or should be replaced[.]" By contrast, the plaintiffs in this case do not only claim recovery for the two months they were not able to enjoy their home during the period of repair. They further contend that the City did not adequately repair their home and, accordingly, their ability to use and enjoy the home was diminished and, in fact, is a continuing diminution. This concept is in keeping with the loss of use award found appropriate in Smith v. Cutts , 99-253 (La.App. 3 Cir. 3/15/00), 759 So.2d 851, writ denied , 00-1081 (La. 6/2/00), 763 So.2d 598. In that case, a panel of this court affirmed a trial court's distinct awards for loss of use of property and mental anguish in a case involving a sewage overrun onto the plaintiffs' property. Id. In doing so, and citing La.Civ.Code art. 1999, the panel noted that the "trial judge faced a situation where damages are insusceptible of precise measurement" and that, "[l]acking an exact estimate of damages, he was free to base his conclusions on the facts and circumstances particular to the case." Id. at 859.

Of course, the City was credited with the plaintiffs' expenses associated with the relocation in this case. Also, the trial court awarded expenses associated with the plaintiffs' mental anguish, addressed above. However, the record further supports an award of damages associated with the inability to use the home during the period of repair, as well as for diminished enjoyment of the home after the renovation. For example, in its ruling, the trial court addressed Mrs. Vincent's complaint regarding the remaining smell in the home and explained:

As far as the smell in the house, and actually I don't think that the Vincents were saying that they became accustomed or immune to it. I think some of the other witnesses said that maybe the reason they didn't smell it is because they had become accustom[ed] or immune to it. The SERVPRO guy said that. I know that Mr. Vincent said that he didn't smell it necessarily that much or at all, but Ms. Vincent said that she smelled it and Ms. Cormier said that she smelled it for a long time afterwards. And you have to consider that this stuff went under the cabinets. That was never decontaminated or sanitized or deodorized. I can't say that they're making it up. Each person is different and it could be a mental component to a false smell or thinking you smell it because of all of the trauma.

With regard to what she perceived as a lingering odor, Mrs. Vincent testified that she continues to detect a musk odor in her home and that, although she "had a brand new house[,]" she does not "event want to be in [it] anymore[.]" She further explained that:

We don't even bring people over to the house because I told [Mr. Vincent] ... you might not be able to smell as much I-I said, it's a musk. It's not sewage like it used to be, but it's a musk-like wet dog, dirty smell in the house and I can't get rid of it. I light candles, every new flavor that comes out, I got it. All them plug-ins are all over the house. Potpourri is in almost everything with oil in it. I just can't get that smell out of the house ... I used to open my door and you'd have that new smell still in the house ... because we don't smoke or anything, and so you'd always have that when you open the door. You don't have that no more.
....
[W]hen people come over I apologize. I said, I'm so sorry, because I feel like they can smell it just like I do. And I don't want them to think I'm a dirty housekeeper.

Mrs. Cormier, who also addressed the alleged smell in the home, stated that: "You can still smell it." She identified the smell as "[r]otten eggs." When counsel questioned whether the smell had improved, she explained that: "Some days are better ... than others, but some days you can walk in there and it's like walking in there and it's overflowing again."

As identified by the trial court, Mr. Vincent admitted that in his pre-trial deposition he stated that he had last smelled an odor in the home several weeks to a month after the overflow. However, the record supports the view that his use of the home changed as well, with Mrs. Vincent explaining that: "He doesn't go in the house a lot. He stays outdoors a lot now, except when football's on." She further explained that he would previously "come around when there was, you know, when we'd have parties or something" and that he took pride in showing their antiques collection to visitors, but that "[h]e doesn't do that no more."

In sum, and again while perhaps reaching the upper boundaries of the trial court's discretion in this case, we find that the record supports the award of $60,000.00 for the plaintiff's loss of use of their property. In particular, we note that the plaintiffs supplied distinct evidence sufficient to prove the separate awards for loss of mental anguish and that associated with the loss of use of their home, both during and after the repair efforts in the home.

This assignment lacks merit.

Contents Damages

In its final assignment of error, the City suggests that the trial court's award of $45,699.00 in damages for the plaintiffs' household contents was in error as, it contends, the award was based solely on value estimates placed upon the items by Mrs. Vincent that were not otherwise corroborated. The City contends that the trial court was instead required to award damages based on the cost of restoration of the items or the difference between the value of the property before and after the incident. It further contends that the plaintiff was required to prove that valuation by competent evidence.

Like general damages, an appellate court reviews a trial court's award of special damages, such as the award for contents damages, for abuse of discretion. See Guillory v. Lee , 09-0075 (La. 6/26/09), 16 So.3d 1104 (citing La.Civ.Code art. 2324.1). The appellate court considers whether there is a reasonable factual basis in the record for the trial court's findings and whether those findings are clearly wrong. Id.

We take these arguments in turn, first addressing the City's contention that the trial court's award of replacement costs was contrary to the supreme court's explanation that:

[A]s a general rule of thumb, when a person sustains property damage due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or may be reasonably incurred, or, at his election, the difference between the value of the property before and after the harm. If, however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the repairs, damages are measured only by the difference between the value of the property before and after the harm. Consequently, if a building such as a homestead is used for a purpose personal to the owner, the damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building.

Roman Catholic Church of the Archdiocese of New Orleans v. La. Gas Serv. Co. , 618 So.2d 874, 879-80 (La.1993). Thus, the City argues in its brief that "where, as here, the damage caused by the tortfeasor is capable of being restored , the person whose property was damaged is entitled to receive either the cost of restoration or, at his election, the difference between the value of the property before and after the harm." (Emphasis added.)

However, that argument ignores the trial court's rejection of the City's position that the items claimed could be "restored." See Roman Catholic Church , 618 So.2d 874 (a case involving a claim for restoration of immovable property). In support of its position, the City presented the testimony of Bob Weldon, accepted by the trial court "in the field of water-related contents in valuation/appraisal." Mr. Weldon estimated the plaintiffs' contents loss to be approximately $10,000.00. However, Mr. Weldon's testimony indicates that his valuation included a view that the legs to the furniture could be "sanitized" after contact with the sewage and that the damages otherwise sustained were not subject to repair. He explained that he did not know of anyone in the area that performed antique furniture repair. He further denied that some items needed replacement, suggesting that items such as toys and bedding that came in contact with the sewage could be simply cleaned and returned to use.

In addressing this disparity between the plaintiffs' position of replacement and the City's view of "restoration," the trial court explained:

[L]et me just say this, as far as picking up and laundering some stuff that you put down in that kind of stuff, I wouldn't want it within the city limits of where I lived. It's hazardous material. It's stinky and it's garbage. And I wouldn't wash a bedspread and put it back on. I wouldn't wash socks and T-shirts and put it back on. It was damaged goods. That stuff needed to be replaced. As far as the contents about the drum,[ ] it makes all the sense in the world to me that it's time to get a new set of drums. Those drums ... I think you said wash-just wash the legs of the-the stands, nobody wants that anymore. I don't think that's an unreasonable reaction.

On this point, we leave the trial court's ruling undisturbed. Notwithstanding the parties' candid description of the discharge, the fact that it was sufficiently damaging as to require the removal of flooring, carpeting, and sheetrock indicates that the trial court permissively determined that certain property was not restorable. Additionally, and as seen in the discussion of the City's claim that the plaintiffs failed to mitigate their damages, the City takes the position that it is not responsible for damage sustained by the relocation of the furniture during the repair period. However, the trial court discounted that position too, concluding that the family did so in an attempt to prevent further damage.

As explained above, the City also contends that the plaintiffs failed to adequately document and corroborate Mrs. Vincent's estimate of replacement damages. The City cites Keaty v. Moss Motors, Inc. , 93-1452, 93-1453 (La.App. 3 Cir. 6/1/94), 638 So.2d 684, 686 (citations omitted), writ denied , 94-2211 (La. 11/11/94), 644 So.2d 399, for the proposition that: "[I]t is the plaintiff's burden to prove with legal certainty every item of damage claimed. This burden must be borne by competent evidence showing the extent of damages and plaintiff's own uncorroborated personal estimate of loss is insufficient."

However, the plaintiffs did not present merely an uncorroborated personal estimate of loss as suggested by the City. Rather, reference to the transcript indicates that Mrs. Vincent testified that she provided an itemized list of property claimed, many with corresponding photos of the items, and for which she either recalled how much she had paid for the item originally or which she estimated based on internet research. Regarding her lack of receipts for her collection of antique furniture for which she sought damages, she noted that she generally did not retain receipts and that she and her husband purchased such items in cash. She was able to produce receipts for certain items she had replaced after the overflow.

In assessing the damages, and although the trial court credited the plaintiffs' valuations to an extent given her history of collecting antiques, the trial court did not fully accept the plaintiffs' claim. The trial court evaluated the various spreadsheets and itemizations presented, explaining:

[A]s far as "P-6" goes, there are quite a bit of items still in use. There are 56 items included in that exhibit. Mr. Weldon said those were nice pieces and he didn't say that they weren't antiques. He said he couldn't say. But Ms. Vincent said they were and I take her word for that. This lady knows more about antiques than everybody else in this room combine[d], I'm sure. And that's worth something in my mind[.]

The trial court thereafter turned to consideration of the plaintiffs' itemizations, rejecting certain items claimed upon a finding that some items were still in use and a determination that other items, such as a fish tank, were not compensable.

Following review, we leave the trial court's determination undisturbed. In short, and given the trial court's consideration of Mrs. Vincent's knowledge regarding her collections, we find no merit in the City's contention that the plaintiffs' personal estimate was uncorroborated. Rather, and in addition to Mrs. Vincent's testimony regarding her recollection, the trial court was able to review the itemized spreadsheet, valuations, and photographic documentation that corresponded with one of the spreadsheets. And, as mentioned above, receipts were produced for many of the items purchased after the overflow. Given these circumstances, we find no abuse of discretion in the trial court's award of damages for the plaintiffs' household items. See, e.g., Blake v. City of Port Allen , 14-0528 (La.App. 1 Cir. 11/20/14), 167 So.3d 781.

We next turn to consideration of the City's final contention that the trial court erred in failing to reduce the award of contents damages due to a failure to mitigate on the part of the plaintiffs. However, the trial court's ruling reveals a finding that the plaintiffs did, in fact, mitigate their damages. Regarding the family's initial response to the flooding event, the trial court observed that:

I was impressed by the testimony of the Vincents and the other plaintiff witnesses about the extent of the discharge or the overflow. They immediately went into mitigation mode by opening the release valves or the clean-out plugs and stopped it themselves. They didn't wait for an hour to call somebody. They immediately got things, coverings, rugs, other absorbent materials to sop up the mess. I can only imagine it was quite a mess. They-I have to applaud them, actually, for getting on it right away. I mean, they didn't sit around with the hand-wringing going on. They got on it. I don't fault them for not calling the city on a Sunday, Super Bowl Sunday. That-they were dealing with, I don't know, what could easily be called a catastrophic event and they-that didn't cross their mind. They got on it the next morning. It had stopped. I don't know what happened or the benefit of what-what could the city have done on that Sunday that they couldn't [have] do[ne] that Monday. The flow had stopped.

Further, in specific response to the City's contention regarding the plaintiffs' placement of their furnishing in a storage pod rather than a climate-controlled environment, the trial court stated:

You going to get professional movers to put the contents in the pod? They didn't wait on anybody to get a pod. They had help from the contractor and got the pod right away and they did the best they could. They didn't wait for an extended period of time before they tried to store-before they did in fact store the contents. That was an act of mitigation also.

Upon review, we find that the record supports the trial court's determination. In fact, many of the damages associated with this element of the plaintiffs' claim were sustained due to the plaintiffs' attempt to respond to the situation. Much of the claim for personal items, bedding, and rugs related to their efforts to stop and clean the sewage incursion. While the City's adjuster suggested that these items could simply be washed and reused rather than being replaced, we find no error in the trial court's conclusion that such a position is untenable, given the property's contact with sewage. Similarly, and while it is undisputed that much of the furniture damage was caused due to its placement in a storage pod, the trial court deemed this action demonstrative of the plaintiffs' attempted mitigation of their damages. In fact, the City offered evidence that it provided reimbursement for the storage pod for which it now contends was the source of much of the damage and of which it now complains.

Finding that this assignment lacks merit, we turn to consideration of the plaintiffs' answer to the appeal.

Answer

The plaintiffs answer the appeal and first note that the repairs to their home cost in excess of $31,000.00, but that the City paid only $28,736.61 toward that cost. By their answer, the plaintiffs seek an additional $2,519.39, which represents the parties' dispute as to replacement costs associated with the home's wood flooring. Testimony at trial indicated that the original wood flooring was no longer available, but that Mrs. Vincent selected another type of wood flooring, accounting for the increased costs. On this point, we maintain the trial court's ruling, noting lack of clarity as to the replacement floors so as to support the trial court's silence on this element of recovery. We similarly reject the plaintiffs' claim that they are owed an additional sum for replacement household items. While the plaintiffs did, in fact, produce receipts for many of those items, reference to the plaintiffs' indexes as to damaged items and the trial court's fashioning of the contents damage along those lines undermines the plaintiffs' contention that the trial court did not compensate them for those items.

Accordingly, we maintain the trial court's assessment of damages.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the appellant, the City of Iowa, in the amount of $8,995.64.

AFFIRMED.

      The record indicates that the plaintiffs' daughter and her three children also lived in the home.

      For completeness, we further note that jurisprudence has previously indicated "that a municipality is strictly liable to a plaintiff property owner under [La.Civ.Code art.] 667 when damages are suffered due to sewage overflows into a home from a municipally owned and operated sewer system." Stanford v. Town of Ball , 05-38, p. 4 (La.App. 3 Cir. 6/1/05), 903 So.2d 1235, 1239, writs denied , 05-1684, 051709 (La. 1/9/06), 918 So.2d 1053, 1057. In this regard, La.Civ.Code art. 667 provides that: "Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him."

      Mrs. Vincent explained that, each evening after Mr. Vincent finished work:
      He'd go straight to the house every day. Don't matter how bad the day was or whatever, he'd go straight to the house. And I'd be there already ... [a]nd I'd stay there and we'd stay until suppertime or even sometimes after that and we'd clean, we'd try to mop, we'd try to wipe the kitchen cabinets. We didn't want anything to grow up on them because the mold[ ] was coming up on the baseboards and stuff and we was afraid the kitchen counter-the kitchen cabinets were going to do the same, so we kept those wiped down every evening. Because we didn't know what was behind them because they didn't deem [sic] the money to take out the kitchen. So, I mean, we just cleaned until we couldn't clean no more, until we got too tired ... and we'd go to the motel and crash-take baths and crash.

      Mrs. Vincent testified that her fish in the aquariums did not survive their relocation.

      Mrs. Cormier described the living condition at the hotel as follows:
      They were very cluttered. Everywhere you turned you were bumping into somebody. It was very chaotic. I mean, there was three small kids and then mine was [sic] in there, so that's four. So she was just-it was very noisy, very chaotic.

      Mr. Vincent explained that:
      In the evenings when I got home from work I cleaned the floors in the house trying to disinfect as much as I could and eliminate some of the odor in the house. I used Pine-Sol ... to mop the floors with, as well as bleach and water, and then afterwards, after that dried, I walked around and I sprayed the floor with OdoBan, which pretty much acts like bleach and water. It kills 99.9 percent of germs and stuff, and plus it gives off a little better fragrance.

      Louisiana Civil Code Article 1999 provides that: "When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages."

      A portion of the plaintiffs' claim involved their grandson's drum kit.