author: THIBODEAUX, Chief Judge.

text:
    Gaynelwyn SONNIER v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
    Marilyn Clark v. State of Louisiana, Department of Transportation and Development, et al.
    Elwood Sonnier v. The Unopened Succession of Lacy N. Johnson, et al.
    18-73 18-74 18-75
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018 Rehearing Denied August 1, 2018
    Stacey Allen Moak, Special Assistant Attorney General, P. O. Box 77651, Baton Rouge, LA 70879-7651, Telephone: (225) 751-6300, COUNSEL FOR: Defendant/Appellee-State of Louisiana, Department of Transportation and Development
    Dorwan G. Vizzier, Broussard, Halcomb & Vizzier, P. O. Box 11875, Alexandria, LA 71315, Telephone: (318) 487-4589, COUNSEL FOR: Plaintiff/Appellant-Gaynelwyn Sonnier
    Judi F. Abrusley, P. O. Box 1114, Oakdale, LA 71463, Telephone: (318) 335-9771, COUNSEL FOR: Plaintiff/Appellee-Marilyn Clark
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Elizabeth A. Pickett, Judges.
   THIBODEAUX, Chief Judge.

The plaintiff, Gaynelwyn Sonnier, appeals interlocutory judgments limiting her experts' testimony, along with a final judgment memorializing the jury's verdict in favor of the defendant, State of Louisiana, Department of Transportation and Development (DOTD), involving a single vehicle accident caused by an allegedly defective highway. Finding no abuse of discretion on the part of the trial judge and no manifest error on the part of the jury, we affirm the judgments of the trial court.

I.

ISSUES

We must decide:

(1) whether the trial court abused its discretion in limiting the testimony of traffic experts Duaine Evans and Douglas Robert, precluding their opinions on "unreasonable risk of harm"; and (2) whether the trial court abused its discretion in limiting the testimony of traffic experts Duaine Evans and Douglas Robert, precluding their opinions on whether a 1949 DOTD project was a "major construction"; and
(3) whether the jury manifestly erred in finding that the accident site did not have defects that created an unreasonable risk of harm.

II.

FACTS AND PROCEDURAL HISTORY

This case involves a tragic accident on Louisiana Highway 10 in Allen Parish near Oakdale. Two young women in their early twenties were killed when their vehicle failed to navigate a curve in the road, traveled across the opposing lane and its shoulder, and hit a tree stump in the ditch opposite their lane of travel. The driver of the vehicle was Lacy Johnson. Her passenger was Breann Sonnier. Breann Sonnier's mother, Gaynelwyn Sonnier, filed suit against the DOTD, alleging faulty construction and maintenance of the roadway and the ditch. Breann Sonnier's father, Elwood Sonnier, and Lacy Johnson's mother, Marilyn Clark, filed similar suits. The three suits were consolidated. Prior to trial, the suits of Marilyn Clark and Elwood Sonnier were settled.

Also prior to trial, the trial court made interlocutory rulings on various motions in limine, two of which precluded the plaintiff's traffic experts from giving opinions on whether a DOTD project was a "major reconstruction" and on whether the subject roadway created an "unreasonable risk of harm" for drivers. The court also ruled that a lab report would be admitted at trial showing that Lacy Johnson had a 0.10% blood alcohol concentration (BAC) at the time of her death.

Following an eight-day jury trial, the jury rendered a verdict finding that the roadway at issue did not contain defects creating an unreasonable risk of harm for drivers. The plaintiff, Gaynelwyn Sonnier, appeals the trial court's interlocutory judgments limiting the testimony of her experts for trial, and she appeals the final judgment dismissing her suit based upon the jury verdict in favor of the DOTD. She asks this court to reverse those rulings, allocate fault between the driver and the DOTD, and award damages to her between $500,000 and $3,000,000 for the loss of her daughter Breann.

III.

STANDARDS OF REVIEW

A trial court has great discretion in evidentiary matters, and its decisions regarding motions in limine are reviewed using the abuse of discretion standard. See Scott v. Dauterive Hosp. Corp. , 02-1364 (La.App. 3 Cir. 4/23/03), 851 So.2d 1152, writ denied , 03-2005 (La. 10/31/03), 857 So.2d 487 ; see also Heller v. Nobel Ins. Group , 00-261 (La. 2/2/00), 753 So.2d 841.

The long-standing standard for appellate review of jury determinations of fact was set forth in Mart v. Hill , 505 So.2d 1120 (La.1987). There, the court established a two-part test for the reversal of a factfinder's determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) determine that the record establishes that the trial court's finding is clearly wrong (manifestly erroneous). Id.

"[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Stobart v. State through DOTD , 617 So.2d 880, 882 (La.1993). Additionally, "the reviewing court must always keep in mind that 'if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.' " Id. at 882-83 (quoting Housley v. Cerise , 579 So.2d 973, 976 (La.1991) ).

IV.

LAW AND DISCUSSION

The 1999 version of La.R.S. 48:35, which applies to this 2006 accident, imposes a duty upon DOTD "to maintain, repair, construct, or reconstruct any public road, highway, bridge, or street, or portion thereof in a manner that is not unreasonably dangerous for a reasonably prudent driver." Specifically, this is the language from La.R.S. 48:35(F)(1)(a) which was newly-enacted law in 1999, along with subparagraphs (G) through (I).

The newly-enacted law from La.R.S. 48:35(F) through (I) was promulgated from Section 1 of Act. No. 1223, originating with Senate Bill 858 of the regular legislative session of 1999. Louisiana Revised Statutes 48:35(F)(1)(b) provided that when a public road is maintained or constructed according to the standards in place at the time, there "shall be a presumption" that the road was maintained or constructed in a "reasonably safe condition." Louisiana Revised Statutes 48:35(F)(1)(c) provided that when a public road does not conform to standards adopted "subsequent to" the approval of the maintenance or construction, "such nonconformity shall not render any such public road ... unreasonably dangerous or defective." Louisiana Revised Statutes 48:35(F)(2) provided that "[w]hen determining whether or not an unreasonably dangerous condition exists ... if a standard, regulation, or guideline is not directly applicable to the maintenance, repair, construction, or reconstruction, then evidence of failure to adhere to such standard ... shall not be admissible in a court proceeding for any purpose."

Louisiana Revised Statutes 48:35(G) provided that the "provisions of this Section shall not affect the requirement" that the DOTD "prioritize the repair, maintenance, construction, or reconstruction of public roads ... based on the need for repair" beginning with those "most in need" and ending with those "least in need" pursuant to "the priority program set forth in R.S. 48:228 through 233." Louisiana Revised Statutes 48:35(H) provided that the above priority program was an administrative process and did not create "an independent cause of action for personal injury or property damage." Louisiana Revised Statutes 48:35(I) provided that the provisions of Section 1 "shall not apply to regulations affecting the installation or design of signs imposed by the United States Department of Transportation."

Section 2 of Act 1223 stated that "[t]he provisions of this Act are intended to legislatively overrule that portion of Aucoin v. State Through the Dept. of Transp. and Development , 97-1938 (La. 4/24/98), 712 So.2d 62, which imposes liability on the [DOTD] for failing to maintain and/or reconstruct an existing highway to modern standards."

DOTD has a duty to maintain the public roadways, including adjacent shoulders and areas in the DOTD's right-of-way, in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. Campbell v. State, Through Depart. of Transportation and Development , 1994-1052, p. 6 (La. 1/17/95), 648 So.2d 898, 901-902 ; Brown v. Louisiana Indem. Co. , 1997-1344 p. 3 (La. 3/4/98), 707 So.2d 1240, 1242 ; Oster v. Dept. of Transp. & Development , 582 So.2d 1285, 1289-91 (La. 1991). This duty, however, does not render DOTD the guarantor for the safety of all of the motoring public or the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances. Netecke v. State ex rel. DOTD , 1998-1182, 1998-1197 p. 8 (La. 10/19/99), 747 So.2d 489, 495. Further, this court has held that DOTD's failure to design or maintain the state's highways to modern standards does not establish the existence of a hazardous defect in and of itself. Myers v. State Farm Mut. Auto. Ins. Co. , 493 So.2d 1170, 1173 (La.1986). Whether DOTD has breached its duty to the public depends on all the facts and circumstances determined on a case by case basis. Campbell , 1994-[1052,] p. 6, 648 So.2d at 901-902.

Forbes v. Cockerham , 08-762 (La. 1/21/09), 5 So.3d 839, 858-59.

A reviewing court should afford considerable weight to an administrative agency's construction and interpretation of its rules and regulations adopted under a statutory scheme that the agency is entrusted to administer, and its construction and interpretation should control unless they are found to be arbitrary, capricious, or manifestly contrary to its rules and regulations. See, Dixie Electric Membership Corp. v. Louisiana Public Service Comm'n. , 441 So.2d 1208, 1211 (La.1983) ; see, also, In the Matter of Recovery I, Inc. , 1993-0441 (La.App. 1st Cir. 4/8/94), 635 So.2d 690, 696, writ denied , 1994-1232 (La. 7/1/94), 639 So.2d 1169.
....
This court has previously described the unreasonable risk of harm criterion as a guide in balancing the likelihood and magnitude of harm against the social utility of the thing, all the while considering a broad range of social and economic factors, including the cost to the defendant of avoiding the harm, as well as the risk and the social utility of the party's conduct at the time of the accident. Netecke , 1998-1182, 1998-1197 p. 14-15, 747 So.2d at 498. In every determination, all the circumstances surrounding the particular accident under review must be considered to determine whether DOTD's legal duty encompassed the risk which caused the plaintiff's damages. Oster , 582 So.2d at 1289.

Id. at 859-60.

The highway department's duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder. Id. This duty extends to drivers who are slightly exceeding the speed limit or momentarily inattentive. Ledbetter v. State, Through Louisiana Dept. of Transp. and Development , 502 So.2d 1383 (La.1987). As to the area off the shoulder of the road, but within the right of way, DOTD owes a duty to maintain the land in such a condition that it does not present an unreasonable risk of harm to motorists using the adjacent roadway or to others, such as pedestrians, who are using the area in a reasonably prudent manner. Oster v. Department of Transp. and Development, State of La. , 582 So.2d 1285 (La.1991) (where off road motorcyclist hit a drainage ditch within DOTD's right of way, DOTD not liable because DOTD has no duty to maintain every inch of property within its control neatly mowed or face the prospect of tort liability).

Cormier v. Comeaux , 98-2378, p. 7 (La. 7/7/99), 748 So.2d 1123, 1127.

Plaintiff's Experts and Unreasonable Risk of Harm

Ms. Sonnier contends that the trial court erred in excluding the opinions of her professional engineering experts, Duaine Evans, P.E., and Douglas Robert, P.E., on the narrow issue of whether the road contained a defect creating an "unreasonable risk of harm" for reasonably prudent drivers. It should be noted at this point that Mr. Evans and Mr. Robert did provide testimony regarding their opinions that the roadway contained defects. Mr. Evans testified that the ten-foot travel lanes were too narrow; that the two-foot-wide shoulders should have been four feet wide; that the foreslope of the ditch was too steep at 1:1 and should have been 1:3 to allow a vehicle to recover after leaving the pavement; and that the stump "at the toe of the slope" was an impermissible obstruction.

However, Mr. Evans, who was testifying as an expert in traffic engineering and accident reconstruction, did not reconstruct the accident; he did not inspect the vehicle or perform a damage and crash analysis of the vehicle; he did not calculate what path the vehicle would have taken if the shoulders had been wider and flatter, or where the vehicle might have gone if it had not hit the stump. He relied heavily on the police report regarding the stump as causing all of the vehicle's damage and regarding where the vehicle left the road. He thought the police report said the driver was traveling almost parallel to the road when the left tires left the pavement causing him to opine that she was "following the curve" with no loss of control and still inputting steering, even though she was going eastbound in the westbound lane when she left the road and entered the shoulder. Mr. Evans opined that the opposing shoulders were designed to benefit even drivers who crossed the opposing lane to access the shoulder driving in the wrong direction, and he denied the characterization that the driver actually had twelve feet of width, ten feet of travel lane width and two feet of shoulder width, to correct her path after crossing the center line.

The trial court permitted all of Mr. Evans's testimony except for a few pages from his total deposition of over 160 pages. The reasoning of Judge Cole that was adopted by Judge Deshotels was in part to preclude the terminology "unreasonably dangerous" or "unreasonable risk of harm" because that language constitutes the legal test to be decided by the jury. The plaintiff asserts that this was error, quoting La.Code Evid. art. 704, which states:

Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

Here, the trial court had multiple reasons for limiting Mr. Evans's testimony which involved keeping his testimony within the bounds of his expertise.

[T]he Court is accepting Mr. Evans as an expert in the field of traffic engineering. He is not an expert in the fields of highway engineering, construction, or design, or human factors engineering. And he wasn't proffered as that.
....
Whether the State has breached its duty by knowingly [ ] maintaining a defective or unreasonably dangerous roadway, depends on the facts and circumstances of each case. This is a task for the trier of fact. To determine this risk, the trier of fact will consider the broad range of social, economic and moral factors and the social utility of the plaintiff's conduct at the time of the accident. Again he is not being offered as a human factors expert, although that is kind of-it is a field that is not far from it, engineering expert. The cost to the State in avoiding the risk is one of the factors that has to be considered in this utility-risk evaluation. And that is up to the trier of fact. This includes not only the cost to fix the instant deviation but other similar deviations on Highway 10. The Court does not believe that he can give an opinion as to whether the roadway is unreasonably dangerous or not because it falls outside his area of expertise. It is not included in his education, training or methodology. The specialized knowledge of Mr. Evans [is] the field of traffic engineering so it cannot assist the trier of fact in making this utility-risk determination. So he can't say, oh because of these factors it is unreasonably dangerous because he has told this Court that he doesn't look at costs or those kinds of things, nor is he a human factors engineer. So I don't believe that he can give an opinion as to whether the condition of the road at the site of the accident is unreasonably dangerous or not. He can't make that statement. He can talk about what hazards are there.

The trial court's reasoning follows the requirements set forth above in Forbes , 5 So.3d 839. In addition, the trial court found that Mr. Evans did not examine the crash history at the site or the work records on the road; nor did he address feasible countermeasures or look at similar defects.

In support of her position, Ms. Sonnier cites Rosen v. State ex rel. Dep't of Transp. & Dev. , 01-499 (La.App. 4 Cir. 1/30/02), 809 So.2d 498, writ denied , 02-605 (La. 5/10/02), 815 So.2d 842, which affirmed the trial court's judgment in favor of the plaintiff after a bench trial. There, the plaintiff hydroplaned into a bridge abutment that did not have a guardrail right after a reconstructed portion of the roadway was prematurely opened to traffic and before the 1994 plan was completed; the plan called for a guardrail, which was installed only days after the accident. The trial court allowed one of the plaintiff's experts, Mr. James Clary, to testify that "an unguarded bridge end on a highway of [that] classification [was] unreasonably dangerous." Id. at 505. Even though he testified that an AASHTO guidelines manual classified the absence of a guardrail as unreasonably dangerous, and then was not able to produce corroborating evidence, the appellate court did not find the trial court in error for allowing him to testify regarding the "ultimate issue" under La.Code Evid. art. 704. Id. at 508. The only reason the appellate court gave was that "DOTD did not object to a substantial majority of Mr. Clary's testimony; therefore, it cannot now complain that Mr. Clary declared the accident site 'unreasonably dangerous.' " Id. Moreover, Mr. Clary was qualified in the fields of highway design, engineering, signage, safety, and maintenance. This case is both factually distinguishable and not binding in this court.

The stump was on the backslope of the ditch, not at the toe of the foreslope as indicated by Mr. Evans. The jury heard testimony that DOTD removed tree limbs after Hurricane Katrina came through in 2005, but the plaintiff presented no work orders for tree removal. DOTD Maintenance Supervisor Damon Cooley testified at trial that the National Guard was removing trees after the hurricane. Wade Wilson testified that he saw DOTD cutting trees but admitted that he did not see DOTD cut the stump at issue.

When Mr. Evans, who was eighty-five and in ill health, retired, the plaintiff retained Mr. Robert, who had the same qualifications and used the same methodology. DOTD again filed a motion to limit the testimony of the plaintiff's expert, Mr. Robert. When the plaintiff filed a motion for reconsideration of the earlier ruling by Judge Cole, Judge Deshotels, after a hearing and after taking the issue under advisement, denied the motion for reconsideration. Both experts testified regarding conditions that in their opinions were hazardous. No proffer was made of the excluded testimony. The question of unreasonable risk of harm is a question of fact for the jury. Fontenot v. Patterson Ins. , 09-669 (La. 10/20/09), 23 So.3d 259. The jury in this case found no defect creating an unreasonable risk of harm. There is no manifest error.

Plaintiff's Experts and Major Reconstruction

Ms. Sonnier contends that the trial judge erroneously excluded the testimony of her experts regarding whether the roadway at issue had undergone a "major reconstruction" such that certain standards had to be applied; and that not meeting those standards constituted a breach of DOTD's duty to maintain the roadway. More specifically, Ms. Sonnier argues that the 1946 DOTD guidelines for major reconstruction included four-foot-wide shoulders, a 3:1 side slope, and twenty feet of horizontal clearance beyond the travel lanes, and that these guidelines apply to the roadway which was converted from gravel to asphalt in 1949. Mr. Evans testified that he reviewed the final estimate for the 1949 project and that it constituted a "major reconstruction" that required application of the 1946 guidelines. DOTD's representative testified that the conversion to asphalt in 1949 was an overlay project, not a major reconstruction. Judge Cole found that whether or not the project was a major reconstruction could only be determined by design engineers or construction engineers and that Mr. Evans and Mr. Robert were traffic engineers.

Mr. Evans's bachelor's degree in the 1950s was in electrical engineering, and he took a post-graduate course in traffic engineering which he said included geometric design of highways. His work has been largely consulting work. Ms. Sonnier argues that Mr. Evans's affidavit shows that he was qualified by fifty years of experience. In his affidavit, however, he admits that he was "not generally involved in the specific design or even in the maintenance of roads and highways."

The court stated as follows:

As I said earlier a traffic engineer, they are not responsible for infrastructure of the highway system. The Court doesn't believe that his education, experience and methodology qualifies him to ... evaluate the project proposed, the cost of same, and make a determination that this is or is not major reconstruction. The Court believes it is beyond his area of expertise and not included in his methodology. Therefore, the Court does not believe he can give an opinion that the 1949 project for Highway 10 was a major reconstruction. He can talk about the AASHTO Standards and, you know, why it is unsafe there. I don't think he can make that one opinion. But he can certainly talk about the roadway and what he believes are a hazard there.

We find no abuse of discretion in the trial court's ruling on this issue. In Forbes , 5 So.3d 839, which is virtually on-point with the present case, the Louisiana Supreme Court reversed the first circuit's judgment in favor of the plaintiff, finding that the evidence did not support a reconstruction of the roadway at issue. There, a legally intoxicated driver with a 0.12% BAC was "straightening out the curves" in a section of Highway 37 by driving south in the opposing north-bound lane of the two-lane highway as he approached each curve. Id. at 843. The driver's car went into a ditch, struck at least one tree, caving in the roof and ejecting both the front-seat passenger and the rear-seat passenger. The front-seat passenger was killed, and the back-seat passenger, who was the driver's nine-year-old nephew, was thrown into the road and hit by another vehicle. He survived.

The child's expert in Forbes testified that the roadway at the accident site had been reconstructed in 1975 and that DOTD had failed to comply with its own and AASHTO's design standards. He further testified that the substandard lane width, shoulder width, shoulder slope ratio, and right of way with trees was a cause-in-fact and legal cause of the accident. The jury found the driver 60% at fault and DOTD 40% at fault. The trial court granted DOTD's motion for a judgment notwithstanding the verdict (JNOV), and the first circuit reversed on appeal, reinstating the jury's verdict. The Louisiana Supreme Court reversed, finding that the car was already out of control before it left the road, finding the driver to be 100% at fault, and reinstating the trial court's JNOV in favor of DOTD. In addressing the design and maintenance of the roadway, the supreme court found that the 1975 project/plan, which had "Reconstruct Base and Surfacing" in its title, was nevertheless not a "major reconstruction" requiring the application of 1975 standards. DOTD experts had testified that the plaintiff's expert was the only person who would characterize the 1975 overlay or preservation project as a major reconstruction. Those witnesses testified that reconstruction projects took four to five years to develop, cost $500,000 to $600,000 per mile in the 1970s, involved federal funds, required a full topographic survey, required upgrades to the vertical and horizontal geometry of the road, and required the purchase of land for additional rights-of-way. Conversely, the project in Forbes was done by an independent contractor, to be completed in sixty days at $520,000 for all 4.5 miles, did not require additional rights-of-way, and required no work on the existing shoulders.

We note that the plaintiff's expert in Forbes was Mr. James Clary, and he was allowed to give his opinion on what constituted a major reconstruction. However, as seen above in Rosen , 809 So.2d 498, Mr. Clary had qualifications in the fields of highway design, engineering, signage, safety, and maintenance. In the present case, Mr. Evans did not have those qualifications; nor did he support his opinion on major reconstruction with proper evidence, such as the kind of information as that testified to by DOTD's engineers in Forbes . The plaintiff's other traffic engineer, Mr. Robert, also testified that Highway 10 had undergone a major reconstruction in 1949, using the same reasoning that the travel surface went from gravel to asphalt. Accordingly, the record supports the trial court's limitation on the testimony of the plaintiff's experts. This is no abuse of discretion in this ruling.

Jury's Verdict

Ms. Sonnier contends that the jury manifestly erred in finding that the roadway contained no defect resulting in an unreasonable risk of harm that caused the passenger's injuries. We disagree. Over eight days of trial, the jury heard and saw ample evidence to support its verdict. DOTD's accident reconstructionist, Jeremy Hoffpauir, testified that Lacy Johnson simply drove her vehicle straight off the road. Trooper Anthony Scott Farris, Mr. Hoffpauir, Mr. Evans, and Mr. Robert all testified that there was no physical evidence, such as tire marks, indicating that the driver attempted to apply her brakes or input steering before she left the roadway. Contrary to Mr. Evans's belief expressed in his deposition testimony, Trooper Farris did not believe that the driver was parallel to the road when she entered the shoulder on the other side of the highway. Trooper Farris testified at trial that the driver's car travelled straight from the east-bound lane, crossed the center line, and went off the edge of the road in a straight path with no evidence of steering or breaking.

Trooper Farris further testified that the warning sign of the curve ahead and the advisory speed was in place. DOTD's traffic engineering expert, Dr. Joseph Blaschke, and the plaintiff's expert, Mr. Robert, testified that the signage met the requirements of the Manual on Uniform Traffic Control Devices (MUTCD). Dr. Blaschke also said there was no defect in the striping, design, or speed limit. Additionally, he said the shoulder width and slope did not violate DOTD policy. Typically, plans and guidelines are adjusted because of the geometry and conditions present. Further, the stump was in a heavily wooded area, and removal of the tree would make no difference because other trees were next to the stump.

Testimony at trial indicated that the driver drove this highway every day and was familiar with the road. Mr. Hoffpauir testified that the driver could see the curve ten seconds in advance of reaching it and had time to react. He said the curve was not severe and required only nine degrees of steering, which most drivers do on a daily basis. Mr. Evans also testified that the curve was not severe and that a driver could safely negotiate the curve. All agreed that the driver had a ten-foot travel lane and a two-foot unimproved shoulder on the other side of the center line within which to correct her path and get back into her own lane. DOTD Maintenance Engineer Damon Cooley said he inspected the area and did not observe a defect in the roadbed or the shoulder that could have caused this accident. Trooper Farris said no defect caused the driver to leave the road.

As previously discussed, the DOTD owes a duty to a prudent driver who is momentarily distracted, but Dr. Blaschke testified that Lacy Johnson, the driver, was more than momentarily inattentive. The plaintiff's toxicologist, Dr. Ernest Lykessa agreed. DOTD's toxicologist, Dr. Gary Wimbish, and Dr. Lykessa testified that 0.10% BAC results in cognitive impairment, blurred vision, decreased hand-to-foot-to-eye coordination, decreased perception-reaction time, and impaired judgment and reasoning. Dr. Wimbish further stated that the driver's BAC impairment more probably than not included a reduced ability to timely input a steering maneuver before the crash. Dr. Blaschke said that driver perception-reaction time is impaired at 0.08% BAC. The plaintiff's own expert, Mr. Evans, stated in his report that alcohol may have played a part in the driver's having left the roadway.

The purpose of a roadside ditch is to drain the highway. La.R.S. 48:1(17). In cases involving alcohol and/or injuries occurring in ditches, the courts usually do not find a duty of DOTD to protect against such risks. That is because the utility of the ditch is high while the conduct of the driver is not.

In Oster v. Department of Transportation and Development, State of Louisiana , 582 So.2d 1285, 1289 (La.1991) (emphasis added), the court stated the following:

We begin by recognizing, as did the court of appeal, that the drainage ditch in question serves a useful purpose. Draining ditches similar to the one involved in this case are a common feature along the roads and highways throughout this State. The ditch into which Gernard Casbon rode his dirt bike is but one of a series of drainage ditches along Judge Perez Highway. The purpose of these ditches is to keep water from draining onto the travel portion of the Highway and causing a dangerous situation for motorists. Because drainage ditches help make travel along the roads of this state more safe, their utility is great.

In Miller v. State, Dep't of Transp. & Dev. , 95-548, pp. 4-5 (La.App. 3 Cir. 3/20/96), 679 So.2d 134, 137-38, writ denied , 96-1674 (La. 10/11/96), 680 So.2d 650, we held:

[U]nder the facts of this case, we must ask: was the risk that a speeding and intoxicated motorist, driving an A-frame vehicle of this size and design, might lose control of his vehicle, travel across the opposite lane of travel, then traverse the shoulder and ditch beyond, and strike this tree at the precise angle it did, within the ambit of duty that DOTD owes motorists?
Additionally, when determining whether a condition or defect presented an unreasonable risk of harm, courts balance several factors, including the probability and gravity of the harm presented by the risk against the social utility of the thing involved, the cost to the defendant of avoiding the risk, and the social utility of the plaintiff's conduct at the time of the accident. Nicks v. Teche Elec. Co-op. Inc. , 93-1418 (La.App. 3 Cir. 6/1/94), 640 So.2d 723, writ denied , 94-1710 (La. 10/7/94), 644 So.2d 640.
The tree in question was part of a vast wooded area. The evidence reveals that there is no reason to believe that the risk of harm this tree posed to this driver was in any way different from that presented by the trees around it. Plaintiffs' own expert, Mr. Moody, testified that "[i]f that tree hadn't been there, and he'd gone off that curve, then there are other trees that he could've hit," some further away, and been killed at his calculated speed. This tree had been there for approximately thirty years, and Allen had driven that road many times, and made that curve, all without incident. Thus, plaintiffs postulate that this tree, with its odd shape and unique position, posed an unreasonable risk of harm, and without it Allen would be alive today, is pure speculation. Moreover, given the "lay of the land," it is a most unlikely scenario.
Furthermore, the record does not substantiate that, indeed, DOTD intended that area to be a "recovery zone," nor that it had any obligation to create and maintain one. In fact, DOTD did not design the highway. We also note that "recovery zones" are intended to aid those drivers, traveling adjacent to them who slightly veer off the road, to return safely onto their own lane of travel. Id. Plaintiffs' position implies that had such a zone existed, it would have allowed this driver to regain control of his vehicle and return to the road. However, there is no evidentiary basis for this. It is simply academic, especially in light of plaintiffs' expert's speculation that Allen had fallen asleep at the wheel. Even if DOTD had an obligation to maintain such a recovery zone, and did so, likely, it would have served no purpose to this driver who never took evasive action nor attempted to regain control of his vehicle.
Holmes v. State, through Dept. of Highways , 466 So.2d 811, 821 (La.App. 3 Cir.), writ denied , 472 So.2d 31 (La.1985), speaks directly to this situation: "[t]he Highway Department's duty to maintain a safe shoulder does not encompass the foreseeable risk of injury to a motorist who strays completely off the traveled portion of the highway because his driving ability is impaired by reason of intoxication...." (Emphasis added). In another case similar to the present one, the court found that a utility pole located near the highway did not create an unreasonable risk of harm such that the state was liable for resulting injuries, where evidence indicated that the driver lost control of the auto and was intoxicated at the time of the accident. Beecher v. Keel , 94-314 (La.App. 4 Cir. 9/29/94), 645 So.2d 666 ; writ denied , 95-0108 (La. 3/10/95), 650 So.2d 1185.
As to the area off the shoulder of the road, but within the right-of-way, DOTD owes a duty to maintain that area in such a condition that it does not present an unreasonable risk of harm to motorists or others using the roadway in a reasonably prudent manner. Oster , 582 So.2d 1285. The logic of the holdings in Holmes , Beecher and Oster would apply with even greater force to the more removed area where Allen had his accident.

In Cormier , 748 So.2d 1123, the driver of a vehicle apparently went to sleep, drove off the roadway across the shoulder and into the back embankment of the roadside ditch. The trial court denied recovery, and the court of appeal reversed. The Supreme Court reversed the court of appeal, and reinstated the trial court's judgment, observing: "Generally, in other cases such as this one, where no road defect caused the driver to leave the road and the driver hit an object in the DOTD's right of way, the DOTD has been relieved of liability." Id. at 1129-30.

In this case, the jury's verdict is supported by the evidence in the record, and it is in alignment with the statutory and jurisprudential law on the issues surrounding an unreasonable risk of harm. The jury's verdict is not clearly erroneous.

V.

CONCLUSION

Based upon the foregoing, the trial court's interlocutory judgments limiting expert testimony and its final judgment memorializing the jury's verdict in favor of the State of Louisiana, Department of Transportation and Development, are affirmed.

Costs of this appeal are assessed to the plaintiff, Gaynelwyn Sonnier.

AFFIRMED.

      The three consolidated suits are Gaynelwyn Sonnier v. State of Louisiana, Department of Transportation and Development , trial docket no. C-2007-190, appeal no. 18-73; Marilyn Clark v. State of Louisiana, Department of Transportation and Development, et al. , trial docket no. C-2007-186, appeal no. 18-74; Elwood Sonnier v. The Unopened Succession of Lacy N. Johnson, et al. , trial docket no. C-2007-188, appeal no. 18-75.

      "Although an interlocutory judgment may itself not be appealable, it is nevertheless subject to review on appeal when a final, appealable judgment has been rendered in the case." Hayward v. Hayward , 12-720, p. 7 (La.App. 1 Cir. 3/18/13), 182 So.3d 966, 970.

      It is now La.R.S. 48:35(E)(1)(a).

      In the partially overruled Aucoin , the supreme court had affirmed the trial court's finding that the road at issue was unreasonably dangerous because of the combination of dangerous defects that DOTD allowed to accumulate on an older highway, including a drop off shoulder, a nonrecoverable sloping, and limited horizontal clearance. There, the trial court had also found that DOTD "failed to prioritize proper maintenance." Id. at 64.


source: Caselaw Access Project

author: PERRET, Judge.

license: Public Domain

text:
    Betty CITIZEN v. WAL-MART STORES, INC.
    18-38
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018
    Keith Joseph Landry, Corey M. Meaux, Allen & Gooch, P. O. Box 81129, Lafayette, LA 70598-1129, (337) 291-1000, COUNSEL FOR DEFENDANT-APPELLANT: Wal-Mart Stores, Inc.
    Thomas E. Townsley, Law Office of Thomas E. Townsley, L.L.C., 711 Pujo Street, Lake Charles, LA 70601, (337) 430-0994, COUNSEL FOR PLAINTIFF-APPELLEE: Betty Citizen
    Court composed of John E. Conery, D. Kent Savoie, and Candyce G. Perret, Judges.
   PERRET, Judge.

In this workers' compensation case, Defendant/Employer, Wal-Mart Stores, Inc. (Wal-Mart), appeals the judgment of the Office of Workers' Compensation (OWC) in favor of Plaintiff/Claimant, Betty Citizen, finding that Wal-Mart was arbitrary and capricious in denying Ms. Citizen's claim for physical therapy, and awarding a $2,000.00 penalty for Wal-Mart's failure to investigate the claim, $3,000.00 in attorney fees, and court costs. Ms. Citizen answered the appeal seeking additional attorney fees for work done on appeal. For the following reasons, we affirm the OWC judgment, and we render an attorney fee award of $2,500.00 in favor of Ms. Citizen for work done on this appeal.

FACTS AND PROCEDURAL HISTORY:

Ms. Citizen injured her lower back in the course and scope of her employment with Wal-Mart on November 30, 2011, while attempting to move a box that had a bicycle in it. The current dispute arose in January 2017, after Wal-Mart tacitly denied physical therapy that was recommended by Dr. Robert Abramson, Ms. Citizen's treating neurosurgeon. In April 2017, Ms. Citizen filed her first 1009 Form, which was denied by the Medical Director for being procedurally untimely. On May 2, 2017, Ms. Citizen filed a 1008 Form alleging that she was entitled to penalties and attorney fees for Wal-Mart's arbitrary and capricious handling of her claim. On June 5, 2017, Ms. Citizen filed a second 1009 Form after Wal-Mart formally denied the recommended physical therapy. On June 27, 2017, the Medical Director denied the requested physical therapy treatment as requested in the second 1009 Form upon finding that "[t]here is no documentation of the results of prior therapy as per the guidelines."

On September 25, 2017, on the day of the hearing, Wal-Mart agreed to approve the physical therapy as requested by Dr. Abramson. Thereafter, the sole issue before the court was whether Wal-Mart was arbitrary and capricious in its denial of the physical therapy. After hearing the testimony and reviewing the record, the OWC found that Wal-Mart was arbitrary and capricious in failing to investigate the claim following the physical therapy request and awarded $2,000.00 in penalties, $3,000.00 in attorney fees, and $3,455.00 in court costs. Wal-Mart now appeals this final judgment.

STANDARD OF REVIEW:

"The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers' compensation action is essentially a question of fact." Authement v. Shappert Eng'g , 02-1631, p. 12 (La. 2/25/03), 840 So.2d 1181, 1188. "Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Foster v. Rabalais Masonry, Inc. , 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied , 02-1164 (La. 6/14/02), 818 So.2d 784 (citation omitted).

DISCUSSION:

In its sole assignment of error, Wal-Mart alleges that the trial court erred in awarding Ms. Citizen an award for penalties and attorney fees. Wal-Mart argues that it relied on medical records in its possession that showed that Ms. Citizen had previously gone through at least one bout of physical therapy with no improvements and that it was unaware, until the morning of the hearing, that Ms. Citizen was unable to complete the recommended physical therapy due to other health issues.

Louisiana Revised Statutes 23:1201(F) governs the assessment of penalties and award of attorney fees for an employer's failure to authorize medical treatment. Louisiana Revised Statutes 23:1201(F)(2) provides that Subsection (F) is inapplicable if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer had no control. In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Baker Hughes, Inc. v. Ardoin , 99-1217, 99-1218 (La.App. 3 Cir. 2/2/00), 758 So.2d 830, writ granted in part, denied in part, 00-681 (La. 4/20/00), 759 So.2d 771. "Thus, to determine whether the claimant's right has been reasonably controverted, ... a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant." Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890.

This court has consistently held that in order "[t]o avoid penalties and attorney[']s fees for the nonpayment of benefits, the employer or insurer is under a continuing duty to investigate, to assemble, and to assess factual information before denying benefits." George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209, overruled on other grounds by Smith v. Quarles Drilling Co., 04-179 (La. 10/29/04), 885 So.2d 562. We find nothing in the record which would reasonably controvert Ms. Citizen's claim for physical therapy that was requested by Dr. Abramson in January 2017. The record indicates that in March 2016, Dr. Robert D. Bernauer, an orthopedic surgeon, prescribed physical therapy for Ms. Citizen. On April 4, 2016, Ms. Citizen received an evaluation at Action Potential in Lake Charles, where it was recommended she have four weeks of physical therapy twice weekly. However, Ms. Citizen was only able to complete one session of physical therapy on April 25, 2016, due to other health issues.

After Dr. Bernauer retired, Ms. Citizen was referred to Dr. Abramson for her back pain. Thereafter, on January 19, 2017, Dr. Abramson also recommended Ms. Citizen undergo more physical therapy in an attempt to avoid any surgical options. This request was made on January 27, 2017, and was ignored until Wal-Mart denied it on May 31, 2017. The medical records provided to the medical director reflect that Ms. Citizen only completed one physical therapy treatment on April 25, 2016. When Dr. Abramson was asked in his deposition, taken on September 22, 2017, whether the medical director's reason that "[t]here is no documentation of the results of prior therapy as per the guidelines" was an appropriate basis for denying Ms. Citizen's claim, he responded "[n]o, that one visit is not a course of physical therapy" and that one day of treatment would not have been enough under the guidelines to know whether physical therapy was effective or not. Based on the record, we cannot conclude that the OWC was manifestly erroneous in determining that Wal-Mart had not reasonably controverted Ms. Citizen's claim for physical therapy.

For these reasons, we affirm the OWC judgment that awarded penalties in the amount of $2,000.00, attorney fees in the amount of $3,000.00, and $3,455.00 in court costs. We also award additional attorney fees of $2,500.00 for this appeal. All costs are assessed to Wal-Mart.

AFFIRMED.


author: JUDGE SANDRA CABRINA JENKINS

text:
    Wayne J. MENDOZA, Sr. v. Lisa Allen MENDOZA
    NO. 2017-CA-0070
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 6, 2018
    Paul A. Tabary, III, TABARY AND BORNE, LLC, 3 Courthouse Square, Chalmette, LA 70043, COUNSEL FOR PLAINTIFF/APPELLEE
    Michael C. Ginart, Jr., Nicholas N.S. Cusimano, Joyce D. Young, LAW OFFICE OF MICHAEL C. GINART, JR. AND ASSOCIATES, 2114 Paris Road, Chalmette, LA 70043, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, and Judge Regina Bartholomew-Woods)
   JUDGE SANDRA CABRINA JENKINS

In this community property partition suit, appellant Lisa Allen Mendoza ("Lisa") seeks reversal of the trial court's July 27, 2016 judgment denying Lisa's demand for reimbursement from her ex-husband, appellee Wayne J. Mendoza, Sr. ("Wayne"), of Road Home funds she used to rebuild their co-owned house that was destroyed by Hurricane Katrina. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 21, 1989, the Mendozas were married in St. Bernard Parish, where they established their matrimonial domicile. On August 22, 1993, during their marriage, the Mendozas purchased immovable property located at 3716 Gallo Drive in Chalmette, Louisiana (the "Property") for $73,395.00. In January 1995, the Mendozas paid off their mortgage loan on the Property using settlement funds that Wayne received from a work-related injury.

On June 24, 1999, Lisa filed a Petition for Divorce, and she was awarded the temporary exclusive use and occupancy of the Property. On January 28, 2000, the court entered a Judgment of Divorce. More than five years later, on August 29, 2005, the Property was destroyed by Hurricane Katrina. At the time, Lisa was the sole occupant of the Property; Wayne was living in Metairie, Louisiana.

After Hurricane Katrina, Lisa applied for a grant from the Road Home program to rebuild the Property. The Road Home program requires applicants to provide documents verifying ownership, such as a title policy, deed, mortgage, or tax bill.

The record does not reflect which documents Lisa submitted to Road Home to verify ownership of the Property.

As part of the grant process, Lisa signed a series of documents: (1) a "Road Home Grant Recipient Affidavit" ("Road Home Affidavit"); (2) a "Road Home Program Grant Agreement" ("Grant Agreement"); and (3) a "Road Home Declaration of Covenants Running With the Land" ("Covenants").

In the Road Home Affidavit, Lisa attested that she was the sole "owner-occupant" of the Property on the date of Hurricane Katrina, that the Property was her primary residence, and that she was currently the owner of the Property. Although the Property was community property acquired during their marriage, Lisa did not identify Wayne as an "owner." In the Road Home Affidavit, Lisa certified that all information provided in the grant application and closing documents was true to the best of her knowledge.

At the grant closing on May 8, 2007, Lisa executed a Grant Agreement in which she is again identified as the sole "homeowner." The Grant Agreement specifies that its purpose is to "provide compensation for damages incurred by the Homeowner(s) due to Hurricane Katrina." The Grant Agreement states that "[t]he proceeds of the Grant will be disbursed in one lump sum directly to the Homeowner(s)." Although the agreement contains a space to identify any "co-homeowner," this space is left blank. Again, Lisa certified that all information that she provided to Road Home was true to the best of her knowledge.

In the Covenants, Lisa is again identified as the sole owner of the Property. The Covenants provide as follows:

NOW, THEREFORE, for and in consideration of receipt of all Grant proceeds as compensation for damages incurred by the Owner due to the Hurricanes, and in order to mitigate further future damage from hurricanes and similar natural disasters, Owner hereby makes the following Covenants and agreements with respect to the Property, which Covenants and agreements shall constitute covenants and restrictions running with and encumbering the Property . (Emphasis added.)

The Covenants include: (1) an agreement not to sell, assign, transfer or otherwise dispose of the Property for three years unless the transfer is made pursuant to the Covenants, and the transferee agrees to abide by the Covenants and assume the owner's obligations under the Covenants and the Grant Agreement; (2) an agreement not to use or occupy the Property except as a primary residence; (3) an agreement to obtain hazard insurance on the Property for three years; and (4) an agreement to obtain flood insurance if the Property is located in a Special Flood Hazard Area.

The Covenants further provide:

Covenants Running With the Property : These Covenants shall constitute covenants running with the Property and shall be binding upon the Owner, and are intended to create negative predial servitudes, predial servitudes, and restrictions on alienation . (Emphasis added.)

If the owner does not comply with the Covenants, "the entire amount of the Grant shall be immediately due and payable, without notice or demand." The Covenants further provide that any judgment obtained against a defaulting owner for breach of the Covenants "shall act as a judicial mortgage against the Property from and after the date of recordation."

The Covenants are to be recorded in the parish in which the property is located.

After the closing, the Road Home program disbursed $128,180.00 in grant funds to Lisa. At trial, Lisa submitted a list of repairs she made to the Property totaling $125,136.00. Lisa testified that she did not pay any money "out of pocket" for these repairs.

On March 11, 2015, Wayne filed a "Petition to Partition Immovable Property by Licitation" ("Petition") naming Lisa as the defendant. Wayne filed a detailed descriptive list declaring the Property as the only community asset, which he valued at $200,000.00. Wayne also requested rental reimbursement from Lisa. Lisa filed a detailed descriptive list valuing the Property at $140,000.00, and requesting reimbursement of $75,000.00 in "separate funds" she used to repair the Property.

A partition trial was held on March 9, 2016. On July 27, 2016, the trial court rendered a judgment: (1) ordering a partition by licitation of the Property; (2) denying Wayne's request for rental payment; and (3) denying Lisa's request for reimbursement of one-half of the Road Home funds she used to repair the Property. In its judgment, the trial court concluded that Lisa had "failed to prove any expenditures of funds for which she is entitled to reimbursement." Lisa suspensively appealed the judgment.

DISCUSSION

Standard of Review

A trial court's rulings regarding the partitioning of community property are reviewed under the "manifest error" standard, granting great discretion to the trial court. Smith v. Smith , 15-1231, p. 2 (La. App. 4 Cir. 9/14/16), 200 So.3d 1007, 1009. "Applying this standard requires that 'we must first find from the record that there is a reasonable factual basis for the lower court's findings of fact; second, the record must establish that the lower court's findings are not manifestly erroneous or clearly wrong.' " Id. , 15-1231,p. 2, 200 So.3d at 1009-10 (quoting Mazzini v. Strathman , 13-0555, p. 3 (La. App. 4 Cir. 4/16/14), 140 So.3d 253, 256 ). We review the trial court's legal conclusions in a partition action de novo . Noel v. Noel , 04-0105, p. 7 (La. App. 4 Cir. 9/8/04), 884 So.2d 615, 619.

Ownership of Road Home Funds

Lisa contends that the trial court erred in finding that the money from the Road Home program was a "grant to both owners of the property to restore the property." According to Lisa, the Road Home money was her "separate property" because she was the "only party that went through the application process, met the qualifications, received the funds, contractually obligated herself to either pay back the funds or fulfill certain conditions, and then satisfied her contractual obligations."

We must decide, therefore, whether the Road Home grant money is Lisa's "separate property" or whether Wayne has an ownership interest in these funds.

In his brief, Wayne cites information from the website of the Road Home program. We may take judicial notice of governmental websites. See Felix v. Safeway Ins. Co. , 15-0701, p. 7 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 632 & n.10. Information from the website establishes that, under the Road Home program, if the co-owners of damaged property are divorced or do not live together, they are to "jointly receive" the Road Home benefits. The Q & A section of the website states as follows:

What if the owners of a home at the time of the storm are divorced, separated or otherwise no longer live together? Can both apply for the same property?
The Road Home can accept only one application for each property, and this applies to owners that are divorced or separated or may no longer be living together. Both owners must sign The Road Home Covenants and will jointly receive the benefits unless legal documents direct The Road Home to do something else. (Emphasis added.)

https://web.archive.org/web/20130328001400/http://road2la.org/Docs/HAP/faq/HAP% 20FAQs% 202012.04.11.pdf#expand (last visited May 17, 2018.)

The Road Home website further states:

If one of the spouses cannot be located, the person filing The Road Home application may initiate a lawsuit that requests the court to authorize who receives The Road Home benefits. If spouses or other owner-applicants are in dispute over the benefits and disposition of the property, the owners will need to legally settle the community property. A lawyer can assist with these options.

Id.

Here, even though Lisa and Wayne were divorced and no longer living together, because they both owned the Property, Road Home required that both sign the Road Home Covenants, and stipulated that they were to jointly receive the proceeds. We reject Lisa's argument that Wayne could not qualify for Road Home funds because he did not "occupy" the house when Hurricane Katrina struck. The Road Home website clearly contemplates that co-owners are to "jointly" receive the proceeds even though they "are divorced or separated or may no longer live together" "at the time of the storm."

Accordingly, there is a reasonable factual basis for the lower court's finding that the Road Home money was a grant to both Lisa and Wayne to rebuild their house. The trial court's decision was not manifestly erroneous or clearly wrong.

Lisa's Claim for Reimbursement

Lisa also contends that the trial court erred in denying her request for reimbursement from Wayne for the "substantial improvements" she made to the community home after it was destroyed by Hurricane Katrina. Lisa relies on La. C.C. arts. 2369.1, 804, and 496.

The Mendozas do not dispute that the Property, which was acquired during their marriage, is community property. See La. C.C. art. 2338. The Mendozas' community property regime, however, terminated on June 24, 1999, when Lisa filed the Petition for Divorce. See La. C.C. art. 2356 (the legal regime of community property is terminated by, inter alia , a judgment of divorce); La. C.C. art. 159 ("[a] judgment of divorce terminates a community property regime retroactively to the date of filing of the petition in the action in which the judgment of divorce is rendered").

La. C.C. art. 2369.1 provides that "[a]fter termination of the community property regime, the provisions governing co-ownership apply to former community property, unless otherwise provided by law or by juridical act." The Civil Code provisions setting forth the general principles of co-ownership are found in La. C.C. arts. 797 - 818.

La. C.C. art. 804 provides, in pertinent part:

Substantial alterations or substantial improvements to the thing held in indivision may be undertaken only with the consent of all the co-owners.
When a co-owner makes substantial alterations or substantial improvements consistent with the use of the property , though without the express or implied consent of his co-owners, the rights of the parties shall be determined by Article 496 .... (Emphasis added.)

Lisa contends that because she made "substantial improvements" to the Property, albeit without the express or implied consent of Wayne, she has a right to reimbursement under La. C.C. art. 496, which provides:

When constructions, plantings, or works are made by a possessor in good faith, the owner of the immovable may not demand their demolition and removal. He is bound to keep them and at his option to pay to the possessor either the cost of the materials and of the workmanship, or their current value, or the enhanced value of the immovable . (Emphasis added.)

Thus, Lisa demands that Wayne reimburse her for one-half of either: (1) the enhanced value of the Property attributable to the improvements that she made; or (2) the costs of the materials and workmanship; or (3) the current value of the costs of the materials and workmanship.

In this case, however, we do not have a co-owner who simply made "substantial improvements" to co-owned property solely with her own funds, without the other co-owner's consent, and then asked to be reimbursed. Here, Lisa, without Wayne's consent, rebuilt the Property using Road Home funds jointly owned by the parties. Lisa did not pay any money "out of pocket," and apparently kept the excess Road Home money. In order to obtain the grant, Lisa alienated and encumbered the Property without Wayne's consent. Thus, for three years, Wayne could not sell, assign, or transfer the Property (even with Lisa's consent) unless the transferee agreed to abide by the Covenants and assume Lisa's obligations. The Grant Agreement also created a predial servitude, which is an alienation of a part of Wayne's co-owned Property. See La. C.C. art. 708. Finally, if Lisa failed to comply with the Covenants, and a judgment was rendered against her, that recorded judgment would become a judicial mortgage against the Property, by which the Property could be seized and sold. See La. C.C. art. 3741.

Lisa's management of the Road Home funds and the Property plainly contravened the Civil Code articles governing co-ownership. Under Louisiana principles of co-ownership, a co-owner may not dispose of the entire thing held in indivision without the consent of all the co-owners. La. C.C. art. 805. Under La. C.C. art. 2369.4, "[a] spouse many not alienate, encumber, or lease former community property ... without the concurrence of the other spouse...." "In the absence of such concurrence, the alienation, encumbrance, or lease is a relative nullity."Id. Likewise, under La. C.C. art. 714, "[a] predial servitude on an estate owned in indivision may be established only with the consent of all the co-owners." Thus, "[w]hen a co-owner purports to establish a servitude on the entire estate, the contract is not null; but its execution is suspended until the consent of all co-owners is obtained." Id.

Under the particular circumstances presented here, we agree with the trial court that Lisa is not entitled to reimbursement under La. C.C. arts. 804 and 496.

Unjust Enrichment

Lisa also contends that it would be inequitable to give Wayne an ownership interest in the Road Home funds, when Lisa alone applied for the grant and Wayne did "absolutely nothing to contribute to rebuild the home."

La. C.C. art. 2298 codifies the equitable doctrine of unjust enrichment as follows:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term "without cause" is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured to the extent to which one has been enriched or the other has been impoverished, whichever is less.

There are five elements required for a showing of unjust enrichment:

(1) there must be an enrichment;
(2) there must be an impoverishment;
(3) there must be a connection between the enrichment and resulting impoverishment;
(4) there must be an absence of "justification" or "cause" for the enrichment and the impoverishment; and
(5) there must be no other remedy at law available to the plaintiff.

Baker v. Maclay Prop. Co. , 94-1529, pp. 18-19 (La. 1/17/95), 648 So.2d 888, 897.

As discussed above, Road Home grants are intended to compensate all owners of property severely damaged or destroyed by Hurricanes Katrina and Rita, and are to be paid jointly to the co-owners in exchange for compliance with the Covenants. Here, Lisa excluded Wayne from the Road Home process altogether. In so doing, Lisa allowed the co-owned Property to be encumbered and alienated without Wayne's consent. Even though Lisa was required to insure the Property, she also had the sole and exclusive use of the Property without mortgage payments. Lisa had no "out of pocket" expense in restoring the home. In the end, there was no impoverishment or enrichment, but rather a mutual economic benefit for both Lisa and Wayne. Lisa's resort to "equity" is without merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court's July 27, 2016 judgment denying Lisa's claim for reimbursement.

AFFIRMED

LOVE, J., CONCURS IN PART AND DISSENTS IN PART FOR THE REASONS ASSIGNED BY JUDGE LOBRANO

LOBRANO, J., CONCURS IN PART; DISSENTS IN PART; AND ASSIGNS REASONS

LOVE, J., CONCURS IN PART AND DISSENTS IN PART FOR THE REASONS ASSIGNED BY JUDGE LOBRANO

LOBRANO, J., CONCURS IN PART; DISSENTS IN PART; AND ASSIGNS REASONS

I respectfully dissent. In this community property partition case, appellant Lisa Mendoza ("Lisa") seeks reversal of the district court's July 27, 2016 judgment classifying the Road Home funds as a grant to both Lisa and the appellee, Wayne Mendoza ("Wayne"), and denying Lisa's claim for reimbursement. I find that the district court erred by classifying the Road Home funds as co-owned and by denying Lisa's claim for reimbursement. I would affirm the portion of the judgment granting the partition itself, reverse the portion of the judgment classifying the Road Home funds as a grant to both Lisa and Wayne, reverse the portion of the judgment denying Lisa's reimbursement claim, and remand the case for a determination of the value of the property and the amount of reimbursement owed to Lisa under La. C.C. art. 496.

Because I find that the district court improperly classified the Road Home funds as a co-owned grant, the proper standard of review in this case is de novo . Plaquemines Par. Gov't v. Schenck , 2015-0127, p.4 (La.App. 4 Cir. 12/9/15), 182 So.3d 1122, 1124, writ denied , 2016-0046 (La. 2/26/16), 187 So.3d 1003, and writ denied , 2016-0045 (La. 2/26/16), 187 So.3d 1004 ; Kevin Associates, L.L.C. v. Crawford, 2003-0211, p. 15 (La. 1/30/04), 865 So.2d 34, 43. "In a case involving no dispute regarding material facts, but only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the [district] court's legal conclusions are not entitled to deference." Felix v. Safeway Ins. Co. , 2015-0701, p. 6 (La.App. 4 Cir. 12/16/15), 183 So.3d 627, 631 (citing TCC Contractors, Inc. v. Hosp. Serv. Dist. No. 3 of Parish of Lafourche, 2010-0685, p. 8 (La.App. 1 Cir. 12/8/10), 52 So.3d 1103, 1108, citing Kevin Associates, L.L.C. v. Crawford, 2003-0211, p. 15 (La. 1/30/04), 865 So.2d 34, 43 ); see also Benson v. ABC Ins. Co., 2012-517, p. 2 (La.App. 3 Cir. 11/7/12), 106 So.3d 143, 145, writ denied, 2012-2650 (La. 2/8/13), 108 So.3d 86.

Lisa assigns two related errors. First, she argues that the district court erred in adjudging the Road Home funds a "grant" to both Wayne and herself, apparently classifying the funds as a co-owned thing. Next, she argues that the district court wrongfully denied her reimbursement claim for the expenditure of those Road Home funds. Both assignments of error hinge on the district court's classification of the funds as something co-owned by Lisa and Wayne. The district court provided no reasons for its classification of the Road Home funds as a "grant" to both Lisa and Wayne.

Under Louisiana law, property is characterized as either community or separate. La. C.C. art. 2335. Things possessed by either spouse during a community regime are presumed to be community things. La. C.C. art. 2340. The classification of property as separate or community is fixed at the time the thing is acquired. In re Succession of Allen, 2005-0745, p. 3 (La.App. 4 Cir. 1/4/06), 921 So.2d 1030, 1032. Louisiana Civil Code art. 2369.3 provides that the general laws of co-ownership apply to what was formerly community property after a judgment of divorce and prior to partition, unless otherwise provided by law. See also Bordenave v. Bordenave, 2003-1534, p. 6 (La. App. 4 Cir. 2/25/04), 869 So.2d 249, 253. Although, during their marriage, Lisa and Wayne had a community property regime, Lisa acquired the Road Home funds after the community property regime terminated. Because the Road Home funds were not acquired by either spouse during marriage, they were not a community thing. Louisiana Civil Code art. 2369.3, therefore, cannot be the basis for treating the funds as co-owned. Furthermore, due to the fact that the contract was entered into after marriage, the Road Home contract cannot be said to have created a community obligation. See La. C.C. art. 2359 (stating that an obligation incurred by a spouse may be either community or separate).

It is undisputed that the Property was co-owned by Lisa and Wayne at the time that Lisa applied for the Road Home funds. Therefore, Wayne was entitled to move for the property to be partitioned. See La. C.C. art. 2369.8 (providing that a former spouse has the right to demand partition of former community property at any time). Wayne argues that, due to his ownership interest in the Property, the Road Home funds would have been co-owned by Lisa and Wayne but for Lisa's omission of Wayne's name from the Road Home application. Conversely, the record indicates that Wayne did not occupy the Property at the time of Hurricane Katrina and, due to the divorce and his intermittent incarceration, could not commit to living in the Property during the three year period beginning on the date of the grant agreement with Road Home. See, e.g., Goutierrez v. Goutierrez, 2012-428, p. 7 (La.App. 3 Cir. 11/7/12), 102 So.3d 1047, 1053 (wherein an owner of residential property failed to qualify for Road Home funds when he did not reside at the home on the date of the hurricane that damaged it). Regardless of Lisa's omission from the application, Wayne failed to prove that the funds could have ever been a co-owned thing. Louisiana law does not permit a district court to reclassify what is obviously separate property acquired by a former spouse after a judgment of divorce on the basis of a hypothetical. Although the result may have been different had Wayne proven that the funds could have ever been able to be co-owned, that is not the case before this Court.

Wayne further argues that Lisa obligated him when she entered into the contract, and, thus, the funds should partially belong to him. He bases this argument on the fact that the Road Home grant created covenants to run with the Property. He argues that had Lisa not complied with the requirements set forth by Road Home, it could have sought return of the funds from him because he has an interest in the property.

This argument lacks merit. Wayne cites no authority for the proposition that Road Home could ever recover funds from him under this particular contract. See La. R.S. 9:2801(4)(c) (stating that the allocation of assets and liabilities in a community property partition in no way affects the rights of creditors). He fails to explain how Lisa could have encumbered something, namely, his interest in the Property, which she does not own. See La. C.C. art. 1977 (stating, "[t]he party who promised that obligation or performance is liable for damages if the third person does not bind himself or does not perform"); see also La. C.C. art. 1977 cmt. (b) (stating, "[f]or as long as the third person does not bind himself, the promisor remains the sole obligor..."). Moreover, the Road Home contract itself provides that "[t]hese Covenants are not intended to create, nor shall be interpreted or construed to create, any third-party beneficiary rights in any party not a party hereto except for the United States of America...." Additionally, Wayne has not alleged that Lisa has failed comply with the requirements set forth by Road Home or that Road Home has attempted to recover any funds from him.

Because the Road Home funds were a separate thing owned by Lisa alone, which she invested into a co-owned thing, she is entitled to reimbursement under La. C.C. art. 496. Accordingly, I would affirm the portion of the judgment of the district court granting the partition itself, and reverse the portion classifying the Road Home funds as a grant to Lisa and Wayne and denying Lisa's reimbursement claim, and remand for further proceedings to determine the value of the Property and the amount of reimbursement due to Lisa.

      Following Hurricanes Katrina and Rita, federal funds were appropriated to the State of Louisiana by the federal government for the purpose of disaster recovery and compensation for those property owners affected by the storms. The Road Home Program was developed by the State of Louisiana and approved by the United States Department of Housing and Urban Development as a plan for disbursement of Community Development Block Grant funds to property owners. Blanchard v. Newton , 865 F.Supp.2d 709, 712 (M.D. La. 2012).

      See Malcolm A. Meyer, Louisiana Heirship Property: Solutions for Establishing Record Title , 55 LA. B.J. 328 (February/March 2008).

      We find no merit in Lisa's argument that the Road Home grant was a loan made solely to her. "A federal grant is an award of financial assistance from a federal agency to a recipient to carry out a public purpose of support or stimulation authorized by a law of the United States. Federal grants are not ... loans to individuals." Fed. Trade Comm'n v. Johnson , No. 2:10-cv-02203, 2017 WL 3503720, *14 (D. Nev. Aug. 16, 2017).

      Although the Road Home grant was $128,180.00, Lisa spent $125,136.00 to rebuild the house. In Robeaux v. Robeaux , 13-0404 (La. App. 4 Cir. 11/6/13), 129 So.3d 659, an ex-wife received $42,367.58 in insurance proceeds to repair a Katrina-damaged house that she owned in community with her ex-husband. She admitted that she used $24,000.00 of the proceeds to supplement her living expenses. This Court found that the ex-husband was entitled to a reimbursement offset of $12,167.21 for half of the remainder of the insurance proceeds expended by his ex-wife. Id. , 13-0404, p. 6, 129 So.3d at 664-65.

      Scholars have acknowledged that "the actual application of [La. C.C. art. 496 ] to the special situation of co-owners is extremely problematic." Symeonides & Martin, The New Law of Co-Ownership: A Kommentar , 68 Tul. L. Rev. 69, 137 (1993).

      At the partition trial, Lisa testified that she didn't tell Road Home that Wayne as a co-owner of the Property because "he didn't live there."

      Absent an agreement, a co-owner does not have the exclusive use of a thing held in indivision . La. C.C. art. 802, Rev. Cmt. (c).

      See La. C.C. art. 2334.

      Both parties spend much of their briefs arguing about whether Lisa's obligation to Road Home is onerous or gratuitous in nature. Because I find that the pertinent issues are whether the obligation itself was Lisa's separate obligation and the funds her separate property, I pretermit a discussion of the onerous nature of the Road Home obligation.

      The Road Home recipient affidavit states in pertinent part:
      1. (a) At the date of Hurricane Katrina or Hurricane Rita, I/we was/were the owner-occupant(s) of the property located at [address of the Property], and it was my/our primary residence...
      * * *
      3. ...The Grant Agreement imposes an obligation on me/us to occupy the Property as our primary residence at some point during the 3-year period beginning on the date of the Grant Agreement. The Covenants restrict me/us from using and occupying the Property for any purpose other than as my/our primary residence for the 3-year period beginning on the date of the Covenants.

      See supra fn. 3 ("At the date of Hurricane Katrina or Hurricane Rita, I/we was/were the owner-occupant(s) of the property located at [address of the Property], and it was my/our primary residence."). It is clear from the plain language of the affidavit that the contract with Road Home binds the occupant of the Property, Lisa, alone.

      As former community property, the Property was co-owned by Lisa and Wayne. See La. C.C. art. 2369.3 (providing that former community property is co-owned in indivision). La. C.C. art. 804 provides that substantial improvements generally may be undertaken only with the consent of all co-owners; but that when a co-owner makes substantial improvements consistent with the use of the property, La. C.C. art. 496 governs. La. C.C. art. 496 provides:
      When constructions, plantings, or works are made by a possessor in good faith, the owner of the immovable may not demand their demolition and removal. He is bound to keep them and at his option to pay to the possessor either the cost of the materials and of the workmanship, or their current value, or the enhanced value of the immovable.
      Accordingly, Wayne is bound to reimburse Lisa one-half of either the cost of the materials and of the workmanship, or one-half of their current value, or one-half of the enhanced value of the immovable.


author: THIBODEAUX, Chief Judge, dissenting.

text:
    Jeanne Bienvenu PELLERIN v. Gilbert Paul PELLERIN, Jr.
    17-946
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018
   Diane A. Sorola, Attorney at Law, 402 W. Convent Street, Lafayette, LA 70501, (337) 234-2355, COUNSEL FOR DEFENDANT/APPELLANT: Gilbert Paul Pellerin, Jr.

Susan Theall, Attorney at Law, 1304 Lafayette Street, Lafayette, LA 70501, (337) 264-9000, COUNSEL FOR PLAINTIFF/APPELLEE: Jeanne Bienvenu Pellerin

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, Marc T. Amy, Elizabeth A. Pickett and Van H. Kyzar Judges.

SAUNDERS, Judge In this case, we must decide whether the retroactive date of an award of final spousal support is incorrect. We must also decide whether Defendant's rule to modify child support is frivolous and deserving of sanctions.

FACTS AND PROCEDURAL HISTORY:

Defendant, Gilbert Paul Pellerin, Jr. ("Mr. Pellerin"), and Plaintiff, Jeanne Bienvenue Pellerin ("Mrs. Pellerin"), married in 1994, separated in 2014, and divorced in 2016. Of their marriage, four children were born, three of whom were under the age of majority at the time of trial. The former community was terminated on December 22, 2014. La. Civ. Code. art. 159.

The litigation between the parties continued, and on April 24, 2015, pursuant to a provisional support order, Mr. Pellerin was ordered to pay Mrs. Pellerin $4,572.62 per month in child support effective May 1, 2015. That amount was based on Mr. Pellerin's average gross monthly income of $28,333.00, and Mrs. Pellerin having no income. Pursuant to that order, Mr. Pellerin was also ordered to pay interim spousal support, without prejudice to either party's right to seek a different disposition of the issues by the court. In addition, a joint custody plan was signed into judgment wherein the parties were granted joint custody of their children with Mrs. Pellerin designated as the domiciliary parent.

On September 14, 2015, Mr. Pellerin filed a motion to terminate the parties community regime and adjust support based upon the oldest child attaining the age of majority.

On October 21, 2015, the parties stipulated, via consent judgment, to a modified child support award of $4,150.00 per month retroactive to September 15, 2015. That amount was based on the oldest child having attained the age of majority, Mr. Pellerin's average gross monthly income of $35,689.00, and Mrs. Pellerin's imputed monthly income of $1,257.00. In that judgment, Mr. Pellerin agreed to the continued payments of contractual spousal support on the same terms and conditions as the provisional support order, without prejudice to either party's right to seek a different disposition of the issues by the court.

On April 15, 2016, Mrs. Pellerin filed a rule for final spousal support. Judgment of divorce was rendered on April 20, 2016.

On October 17, 2016, Mrs. Pellerin filed a joint motion and order to continue the rule for final spousal support, to which Mr. Pellerin had no opposition. That order states, in pertinent part, (emphasis added):

[T]he parties agree to contractual spousal support on the same terms and conditions as the current interim spousal support order, which will last up and until the issue of Final Periodic Spousal Support is decided through trial or consent judgment . This agreement is made because of extenuating circumstances, and will in no way affect the rights of either party with respect to Final Periodic Spousal Support and is agreed to, by all, in order to keep the status quo during any time after Interim Periodic Spousal Support terminates.

On December 15, 2016, the parties stipulated, via consent judgment, to a modified child support award of $5,455.00 per month effective on that date. That amount was based on Mr. Pellerin's average gross monthly income of $43,960.00, and Mrs. Pellerin's imputed monthly income of $1,200.00. In that judgment, Mr. Pellerin agreed to the continued contractual spousal support on the same terms and conditions as the current interim spousal support, without prejudice to either party's right to seek a different disposition of the issues by the court

On January 12, 2017, Mr. Pellerin filed a rule to modify child support, wherein he alleged the following:

(1) His earnings for 2016 included additional shifts at two different hospitals with income derived therefrom totaling about one-third of his salaried earnings without bonuses;
(2) Due to changes in the staffing of the two (2) hospitals providing his extra shifts, he is no longer earning income he had earned previously;
(3) He is burdened with the payment of extraordinary community debt;
(4) His reduced income occurred through no fault of his own;
(5) His ability to earn extraordinary income is outside his normal employment, and there is no method to calculate these earnings, which would be speculative;
(6) His reduced income represents a material change in circumstances.

At the conclusion of the trial on May 22, 2017, the parties were given an opportunity and deadline for post trial briefs, and the matter was fully submitted on June 2, 2017.

In its judgment rendered on July 25, 2017, the trial court denied Mr. Pellerin's motion to modify child support, found the filing of the motion to be frivolous, cast him with all court costs, and awarded attorney's fees in the amount of $1,000.00 to Mrs. Pellerin. The trial court further held that Mrs. Pellerin was entitled to $3,600.00 per month in final spousal support retroactive to April 20, 2016, the date judgment of divorce was rendered.

Mr. Pellerin timely filed a motion for devolutive appeal. Pursuant to that motion, Mr. Pellerin is presently before this court alleging two assignments of error.

ASSIGNMENTS OF ERROR:

1. The Trial Court erred in ordering that the award of Final Periodic Spousal Support be made retroactive to April 20, 2016, the date upon which the parties' Judgment of Divorce was signed.
2. The Trial Court erred, as a matter of law, in finding that Defendant/Appellant's Motion to Reduce Child Support was frivolous, and thereafter, awarding attorney's fees to the Plaintiff/Appellee.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first his assignment of error, Mr. Pellerin argues that the trial court erroneously awarded Mrs. Pellerin final spousal support retroactive to April 20, 2016, the date judgment of divorce was rendered. We find merit to this contention.

When an issue raised on appeal posits a question of law, the standard of review is de novo wherein the appellate court's conclusion on the issue determines whether the lower court was legally correct. Tran v. Williams , 10-1030 (La.App. 3 Cir. 2/9/11), 56 So.3d 1224.

In Hulshoff v. Hulshoff , 11-1055, p. 5 (La.App. 3 Cir. 12/7/11), 81 So.3d 57, 62, this court stated:

"A consent judgment is a bilateral contract between the parties by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss." Horrigan v. Horrigan , 10-1377, p. 5 (La.App. 1 Cir. 6/14/11), 70 So.3d 111, 114. See also Lytle v. Commercial Ins. Co. of Newark, N.J. , 285 So.2d 289 (La.App. 3 Cir.1973). As a consent judgment is a type of contract between the parties, its interpretation is governed by the determination of the common intent of the parties ..."

Louisiana Revised Statutes 9:321 states, in pertinent part (emphasis added):

B. (1) A judgment that initially awards or denies final spousal support is effective as of the date the judgment is rendered and terminates an interim spousal support allowance as of that date.
(2) If an interim spousal support allowance award is not in effect on the date of the judgment awarding final spousal support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown.

In Maggio v. Maggio , 07-983, pp. 7 (La.App. 5 Cir. 3/25/08), 981 So.2d 55, 59, the fifth circuit stated (emphasis added):

There is no statutory provision giving the trial court discretion to make the final spousal support award retroactive where interim support was being paid at the time the final support judgment was rendered. The statute very clearly provides that in such a case the final spousal support judgment is effective as of the date the judgment is rendered.

In the instant matter, a provisional support order established the initial child support award. Thereafter, the Pellerins stipulated, via consent judgment, to modify the stipulated child support awards. In each of those judgments, Mr. Pellerin agreed to the continued payments of interim spousal support. Subsequently, Mrs. Pellerin filed a rule for final spousal support, and later, a motion and order to continue that rule. The order, drafted by Mrs. Pellerin's attorney, provided for a different disposition by the court on one specific aspect of any future award of final periodic spousal support, to wit: the retroactive date. Moreover, the order distinctly reflected the intent of the parties that Mrs. Pellerin's interim spousal support "will last up and until the issue of final periodic spousal support is decided through trial or consent judgment."

Effectively, the order contained provisions particularly designed to benefit Mrs. Pellerin by extending the interim spousal support award past the time it would have expired by operation of law. The order did not affect how much final periodic spousal support Mrs. Pellerin should be awarded. As such, we find that the interim spousal support award continued to be in force and effect on the date judgment was rendered awarding final spousal support. Accordingly, we reverse the trial court's judgment on this issue and find that the retroactive date of the final spousal support award shall be the date upon which the trial court decided the issue of final spousal support, and the interim spousal support allowance is terminated as of that date.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Mr. Pellerin argues that the trial court erred in finding that his motion to reduce child support was frivolous, such that it warranted sanctions. We find merit to this contention.

Under manifest error or clearly wrong standard of review, an appellate court must determine whether the trial court committed an error of law or made a factual finding that was manifestly erroneous or clearly wrong and must review the record in its entirety to make this determination. Blackshear v. Golden Age Nursing Center, LLC. 14-723 (La.App. 3 Cir. 2/4/15), 158 So.3d 179.

Louisiana Code of Civil Procedure Article 863 (emphasis added) provides, in pertinent part:

B. Pleadings need not be verified ... but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.

Louisiana Revised Statutes 9:311 provides, in pertinent part:

A. (1) An award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award.
....
E. If the court does not find good cause sufficient to justify an order to modify child support or the motion is dismissed prior to a hearing, it may order the mover to pay all court costs and reasonable attorney fees of the other party if the court determines the motion was frivolous.

Material is defined as "a change in circumstances having real importance or great consequences for the needs of the child or the ability to pay of either party." La. R.S. 9:311 cmt. (a).

In Stogner v. Stogner , 98-3044p. 12 (La. 7/7/99), 739 So.2d 762, 770 (footnote omitted), the supreme court noted:

In the evaluation of these cases, there is no bright line rule as to what constitutes a change of circumstances to warrant modification. Rather, as noted in Rousseau v. Rousseau , 96-502 (La.App. 3 Cir. 12/26/96), 685 So.2d 681, 682 :
[T]he party asking for an increase [or decrease] need only prove a change of circumstances sufficient to justify the increase [or decrease] in child support ... Sometimes the change in circumstances will be substantial and sometimes not; the magnitude of the change of circumstances is peculiar to the facts of a particular case. Simply stated, the type of change in circumstance is presented and determined on a case by case basis.
The application of that rule, as so many other related matters, concerning modification of child support clearly falls within the great discretion of the trial court. Accordingly, each case will rise or fall on the peculiar facts adduced and an appellate court will not disturb the trial court's decision in these matters, absent clear abuse of discretion. Rousseau , 685 So.2d at 683.

Our examination of the record reveals that pursuant to the December 15, 2016 consent judgment and its attached Joint Obligation Worksheet, Mr. Pellerin's gross monthly income, as agreed by the parties, was $43,960.00 per month, and Mrs. Pellerin's imputed income was $1,200.00 per month. As such, the Pellerins stipulated to $5,454.76 per month for the support of the three (3) minor children.

At the May 22, 2017 hearing, pursuant to Mr. Pellerin's motion to modify child support, the trial court made a factual finding that the "Evidence ... supports at a minimum Mr. Pellerin's 'reduced' income reflects a monthly average of $30,000.00 through March 2017. Assuming the trial court's factual finding is correct, under the Louisiana Child Support Guidelines Mr. Pellerin's support obligation for a monthly income of $30,000.00, for three (3) minor children would be $4,467.00, approximately $1,000.00 less than he is presently paying.

Of significance, there is a rebuttable presumption that the amount of child support calculated under the guidelines is the proper amount of child support to be awarded. La.R.S. 9:315.11 ; Montgomery v. Waller , 21,853 (La.App. 2 Cir. 12/5/90), 571 So.2d 765. Furthermore, in accordance with La.R.S. 9:315.11(B), a court should not impute income to the unemployed spouse if it would increase the obligation of the payor spouse, as the trial court has in this case. Therefore, had the trial court used Mr. Pellerin's gross monthly income of $30,000.00 to calculate his support obligation, pursuant to the Louisiana Child Support Guidelines, his support obligation would have been reduced by approximately 1,000.00 per month, which is not an insignificant amount and which we find constitutes a material change.

We are cognizant of the fact that there is no bright line rule as to what constitutes a change of circumstances to warrant modification. In the instant matter, our review of the record reveals that under the facts of this case, Mr. Pellerin had the right to assert his right to a modification of support, based on his reduced income, which occurred through no fault of his own, without fear of exposing himself to heavy penalty. However, in the instant matter, he appeals only the assessment of the penalty. As such, we find that that the trial court abused its discretion in finding that Mr. Pellerin's motion was frivolous and in awarding attorney fees of $1,000.00 to Mrs. Pellerin. Accordingly, we reverse the trial court's judgment awarding attorney fees.

Costs of these proceedings are assessed to Mrs. Pellerin.

CONCLUSION:

Gilbert Pellerin asserts two assignments of error as to why the trial court erred in ordering that the award of final spousal support be made retroactive to April 20, 2016, the date upon which the parties' judgment of divorce was signed, and in finding that Mr. Pellerin's motion to reduce child support was frivolous, such that it warranted sanctions. Finding merit to Mr. Pellerin's first assignment of error, we reverse the trial court's judgment on this issue, holding: (1) the retroactive date of the final spousal support award shall be July 25, 2017, the date upon which the trial court decided the issue of final spousal support; and (2) the interim spousal support allowance is terminated as of that date. We also find merit to Mr. Pellerin's second assignment of error that the trial court erred in finding that his motion to reduce child support was frivolous, such that it warranted sanctions. Accordingly, we reverse the trial court's judgment awarding attorney fees of $1,000.00 to Mrs. Pellerin.

Costs of these proceedings are assessed to Mrs. Pellerin.

REVERSED AND RENDERED.

Thibodeaux, Chief Judge, dissents with reasons.

THIBODEAUX, Chief Judge, dissenting.

I disagree with the reversal of the trial court judgment.

There is no transcript at all to rely upon. It is the appellant's duty to request a transcript so that facts can actually be determined. The jurisprudence is clear that the lack of a transcript necessarily limits our review. We have to determine under these circumstances whether "the trial court correctly applied the law to the facts it 'found'." ... "when a record contains written reasons for judgment by a trial judge which reveals substantially all of the material testimony, and the record is sufficiently complete to permit full consideration of the issues presented on appeal, the reasons for judgment will be considered in lieu of the narrative of the facts required by LSA-C.C.P. Art. 2131." Miller v. Potier , 94-1000 (La.App. 3 Cir. 2/1/95), 649 So.2d 1130, 1131. The law is clear that, under the circumstances of this case where there is no transcript, we simply have to consider whether the trial judge correctly applied the law to her factual findings.

Here, we have to rely on the trial judge's extensive reasons for judgment since there is no transcription of the record. For example, how do we know that Mr. Pellerin's income was reduced "through no fault of his own?" We do not and cannot because there is no testimony. To the contrary, the trial court found that Mr. Pellerin "brought no one to substantiate his assertion of reduced on-car coverage. As a matter of fact, on cross-examination, it was clear that he continues to do on-car work at will and compensation for same has not changed." Moreover, according to the reasons of the trial judge, Mr. Pellerin's "testimony regarding his income was supported and vague at best and some of his testimony was simply incredible." Finally, the trial court noted that "[i]t was clear that Mr. Pellerin has access to proceeds that would substantially reduce the community debt but he has failed to take advantage of this opportunity." We have to rely on these "facts" according to Miller v. Potier .

Thus, I would find that his motion was frivolous, particularly in view of the fact that he filed it within a month after they agreed to a certain amount of child support. I would affirm the judgment of the trial court on the issue of whether his motion to reduce child support was frivolous and would affirm the award of attorney fees to Mrs. Pellerin.

Judge Saunders refers to an Order of October 17, 2016 where the parties "agreed" to contractual spousal support on the same terms and conditions as the current interim spousal support. Again, there is no agreement, and we cannot infer otherwise. The "Order" was signed by only one attorney and had not even been approved by the court. Thus, there was no agreement to set a date upon which final periodic spousal support would become retroactive. Again, because there is no transcript, we have to rely on the findings and rulings of the trial court. There is nothing in the record which says that or suggest that the trial court was in error in fixing the retroactive date to April 20, 2016.

For the foregoing reasons, I respectfully dissent.