author: THIBODEAUX, Chief Judge.

text:
    Alvin PETE v. STATE of Louisiana, DEPARTMENT OF CORRECTIONS, et al.
    17-1131 17-1132
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2018 Rehearing Denied June 20, 2018
    Charles Brandt, Brandt & Sherman, L.L.P., 111 Mercury Street, Lafayette, LA 70503, Telephone: (337) 237-7171, COUNSEL FOR: Plaintiff/Appellee-Alvin Pete
    Patrick B. McIntire, Oats & Marino, Gordon Square-Suite 400, 100 East Vermilion Street, Lafayette, LA 70501, Telephone: (337) 233-1100, COUNSEL FOR: Defendant/Appellant-Ronald Theriot, Sheriff
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   THIBODEAUX, Chief Judge.

Plaintiff, Alvin Pete, filed suit against Ronald J. Theriot, in his official capacity as the sheriff of St. Martin Parish (Sheriff), seeking damages for an injury he sustained to his left eye while incarcerated in the St. Martin Parish Jail, Breaux Bridge Substation 2 (jail). The trial court found in favor of Mr. Pete, awarding him $50,000.00 in general damages. Both parties appealed. In this opinion, we have consolidated the two appeals, 17-1131 and 17-1132. Reviewing the record, we find that the trial court erred in failing to apportion comparative fault and that the general damages award was abusively low. Accordingly, we amend the judgment to correct these errors and affirm the judgment as amended.

I.

ISSUES

The Sheriff entreats us to consider the following issues:

(1) To the extent that the Judgment casts the Sheriff in liability for damages, the trial court erred by finding the Sheriff at fault for Plaintiff's injury, including through a failure to train, by allowing aggregate within the trustee yard, or by failure to supervise the trustees;
(2) To the extent that the Judgment casts the Sheriff in liability for damages, the trial court erred in failing to apportion fault to the trustees who were throwing the rocks; and
(3) The trial court erred in overruling the Sheriff's exception of prematurity for failure to exhaust administrative remedies, and in failing to reconsider that ruling at trial when it was clear that the Plaintiff's testimony had changed.

Mr. Pete asks this court to consider if the trial court committed error in awarding only $50,000.00 to Alvin Pete for loss of his eyesight in his left eye.

II.

FACTS AND PROCEDURAL HISTORY

On February 18, 2013, Mr. Pete was an inmate at the jail located in St. Martinville, Louisiana. While working in the trustee yard, Mr. Pete was struck in the left eye with a rock thrown by another inmate, Freddie Handy. After evaluation of his injuries at the jail's medical facility, Mr. Pete was transferred to University Medical Center in Lafayette, Louisiana, for treatment. Once there, it was determined that the injury required specialized treatment at the Louisiana State University Eye Clinic. On the evening of February 18, 2013, doctors performed an eight-hour surgery that resulted in Mr. Pete losing sight and use of his left eye. Mr. Pete returned to the jail and, after a short convalescence, he was transferred to Hunt Correctional Center (Hunt) to serve out the remainder of his sentence.

Mr. Pete filed his petition for damages against the Sheriff, among other defendants, on February 11, 2014. Therein he alleged negligence on the part of the Sheriff, "in the following, non-exclusive particulars:"

1. failure "to properly and adequately supervise the inmates ... so as to avoid risk of injury encountered;"
2. failure "to maintain the trustee yard ... in a reasonably safe condition, including having dangerous instrumentalities present in the yard;"
3. failure "to have in place adequate policies to protect the physical safety and welfare of inmates;"
4. failure "to adequately enforce policies and procedures designed to protect the physical safety and welfare of inmates; and"
5. failure "to have sufficient personnel on hand to properly and adequately supervise the inmates while in the trustee yard."

In response, the Sheriff filed a dilatory exception of prematurity, alleging that Mr. Pete's claims were premature because he had not exhausted the available administrative remedies as required by the Prison Litigation Reform Act, La.R.S. 15:1181 -1191. Mr. Pete opposed the exception, arguing that any failure to use the administrative remedy available was due to the Sheriff's failure to comply with his office's policy.

The testimony at the hearing on the exception revealed that Mr. Pete was booked into the jail on May 1, 2012, at which time he received a copy of the St. Martin Parish Correctional Center Inmate Handbook (handbook). The handbook contained the policies and administrative remedy procedures (ARP) at issue herein. Specifically, the handbook allowed thirty days in which to file an ARP request, unless time was extended by "extenuating circumstances." While suggesting a particular form for filing grievances, the handbook did not include an ARP request form. Major Robley Picard, who served as the jail's warden at the time of Mr. Pete's injury, testified that the appropriate forms were available "on a desktop in the conference room" to which the trustees had access, but were not in an identifiable area.

Upon completion of an ARP request, the policy allowed for any employee on duty to accept the form, thus beginning the process for a complaint. The employee receiving the ARP request was then required to deliver the form to the warden's inbox, after which the warden had fifteen days to respond. Major Picard further testified that there existed no policy "where whomever received [the request] was responsible for documenting it anywhere like [in] a log book." He also did not have a log to document receipt of requests; rather, he would just answer the request and put it in the inmate's file.

Mr. Pete testified that he was aware of the ARP, which he followed. He further testified that after asking for an ARP request form and being told those forms were not available, he submitted a handwritten request approximately four days after his release from the hospital. Mr. Pete further explained that he wrote multiple copies of his request because he did not have access to a copy machine. He gave the original to Deputy Ernest Singleton, kept a copy for himself, and sent the other copies to attorneys in an effort to obtain representation. Major Picard testified, however, that, while he was familiar with Deputy Singleton who was employed during this period and was capable of accepting requests, he himself did not receive Mr. Pete's original ARP request. Deputy Singleton was not called to testify.

After taking the matter under advisement, the trial court denied the exception finding that the Sheriff presented no evidence to refute Mr. Pete's assertion that he followed the ARP set forth in the handbook. The trial court reasoned:

Simply because the Warden did not receive Mr. Pete's grievance, does not prove that Plaintiff did not file the grievance. Additionally, the court found Plaintiff's testimony credible and corroborated by testimony concerning "Sergeant Singleton" by Plaintiff and the Warden. Notwithstanding the written policy which Plaintiff admits he received, the policy provides no method of tracking receipt of complaint, or response to a complaint. Although the jail utilized an employee grievance form during their investigation of the incident, even it was not signed by the Plaintiff. As a result of the above, the mover could not carry the burden of his exception of prematurity and thus his Dilatory Exception of Prematurity is DENIED .

At the bench trial on the merits, the unrefuted testimony established that on the morning of February 18, 2013, Mr. Pete's left eye was struck by a limestone rock thrown by Mr. Handy, while Mr. Pete was walking on a pathway in the trustee yard. The aerial view exhibits admitted into evidence depicted the trustee yard as a general area of approximately one acre that housed the trustees, which included three dormitories and a conference center used by the administration. The pathway where the incident occurred was an open space between the conference center and the dormitories that was covered with limestone aggregate.

In his case-in-chief, Mr. Pete first called Major Picard, who testified to the duties of guards to care for, keep control of, maintain custody of, monitor, and escort the inmates. He agreed that "correctional officers have an obligation to watch the prisoners to prevent them from harming other prisoners[.]" On the day of the accident, Major Picard explained that two guards-Deputy Singleton and Deputy Matthew Newton-were supposed to be monitoring and controlling the trustees, but only Deputy Newton was present. He admitted there was "no record whatsoever of Deputy-or Sergeant Singleton being there that day." Regarding the supervision of the inmates, Major Picard agreed that the general rule was that "trustees are always monitored and supervised," the exception being when a deputy "had to leave because of some incident somewhere else[.]" He conceded that, although it did not specifically cross his mind that someone might use one of the limestone rocks as a weapon, it was "a possibility because there's a lot of things that can be used as a weapon." And while it was impossible to remove everything, Major Picard stated that it was not impossible to remove the limestone that covered fifty percent of the one-acre trustee area.

On cross-examination, Major Picard testified that he was never required by the Department of Corrections to remove the limestone aggregate and never cited by the department for having aggregate in the trustee yard. Moreover, he explained that there were no prior rock throwing incidents with injury.

In his testimony, Deputy Newton recalled that, on the day of the accident, he was the only deputy on duty in the trustee yard. Because a trustee needed a tool, Deputy Newton had gone into one of the dormitories to unlock the cage where the tools were kept. On his way back from the dormitory, he saw inmate Allen Perro throw something, which turned out to be a rock, at Mr. Handy. Deputy Newton then witnessed Mr. Handy grab a rock and throw it at Mr. Perro; the rock hit Mr. Pete instead. Immediately thereafter, the deputy saw Mr. Pete bend over, grabbing his left eye, while Mr. Handy removed his shirt and applied pressure to the wound. Mr. Handy then assisted Mr. Pete to the medical facility. Meanwhile, Deputy Newton left to conduct a random drug screen on other trustees. When questioned regarding his reaction, or lack thereof, to the incident, Deputy Newton testified that he did nothing because he was too far away for them to hear him and he did not believe they would have had time to stop. He approximated that he was 150 feet from the men at that time, but he would "assume" that the men would not have been throwing rocks if he had been standing closer to them.

The witness statements and deposition testimony of Mr. Handy corroborated Deputy Newton's recollection of the events of that morning. They further clarified that at least two rocks were thrown: one thrown by Mr. Perro, which hit Mr. Handy, and the other one thrown by Mr. Handy, which hit Mr. Pete. Mr. Handy testified, in his deposition, that he had seen other inmates throwing rocks.

Mr. Pete then testified regarding his lengthy surgery in which his eyeball was "stitched ... up." He also explained the effects, both mental and physical, of his injury and disfigurement as his eyeball has "sunk back" and is now "flat." As he stated, his left eyelids do not open as there is "no pressure to push [the top] eyelid up." And according to his testimony, he now has weakness in his right eye due to the loss of his left eye. As to how he feels, Mr. Pete testified that it is "very hard." He cannot get a job as no one wants to hire him because he poses a risk, and he cannot function as he used to because he now has a permanent blind spot on his left. When he looks in the mirror, he feels "bad" about himself and is embarrassed.

On cross-examination, Mr. Pete testified that he had seen inmates tossing rocks before. When questioned regarding the filing of his ARP request, Mr. Pete again testified that he knew he had to file a grievance, which he did by hand. In an attempt to clarify why some copies of his ARP request referred to events that occurred weeks after the accident, Mr. Pete explained that he wrote another request after his transfer to Hunt because he had not received anything from the warden in response to his initial request.

Mr. Pete then called his expert in "[m]anagement of correction facilities" and "[s]ecurity at correction facilities," Terry Hines. Mr. Hines opined that rocks "should not have been on that part of the recreation yards where any offender could have gotten a hold of." Further, he had never been in a facility where the recreation yard for prisoners had limestone or rocks that were not covered with cement or sod. In his opinion, failure to remove a known hazard would fall below the standard of care, and if it was in the administrators' minds that the limestone might have been used as a weapon, then they needed to do something to address it. He further opined that an officer not at his post is below the standard of care, particularly in this case where an "officer's presence would have been enough to keep those individuals from throwing the rocks because they knew he was in the area and they would get disciplinary write-ups."

When questioned regarding Deputy Newton's reaction, Mr. Hines testified that Deputy Newton should have either "yelled something to immediately shut down the rock throwing incident" or "call[ed] for assistance so he could have got [sic] staff there quicker to stop the horseplay." He clarified, however, that in Deputy Newton's defense

it could have happened so quick that they picked up the rock that it wouldn't have mattered if he had yelled or not. That's why it's important that he should have been in the area supervising. There may have only been three inmates. But if that was his assigned area, then he should have been in that area, not checking out tools.

On cross-examination, Mr. Hines did concede that he could point to no applicable standard where "having aggregate on a trustee yard [wa]s a violation." But he explained that

common sense would dictate that when you're running a prison, things are going to happen, and if we as administrators don't negate that like removing aggregate, people are going to throw rocks. Offenders are going to throw rocks. Offenders are going to get hurt. Staff could get hurt. My biggest concern isn't so much for the offender as it is staff. If they had a riot at that facility, the first thing the offenders are going to do is go to that rock to throw at staff, guaranteed. If there was a disturbance, that would happen.

When questioned further, Mr. Hines agreed that no inspection report ever "wrote them up" for the aggregate, the general guidelines do not require constant supervision of trustees, and his opinion was based on the trustees being in the yard to recreate. Admittedly, he "would not expect every trustee to have a deputy with eyes on him at all times."

Mr. Pete then rested his case, and the Sheriff began presenting his defense by calling his "expert in jail standards, operations, inspections, policies, and procedures, including design considerations," Gary Walter DeLand. Mr. DeLand opined that having aggregate in the trustee yard was not below the standard of care in this case. While he agreed that jails should remove things that have no specific value, he opined that the aggregate had a purpose in this case and did not violate any standard for the design or operation of a jail such as the one herein. He further found no violation of staffing standards or substandard conduct by the jail staff. And he had "no quarrel" with doing fifteen to thirty minute checks on the trustees in the various trustee areas, explaining

it would be inordinately expensive to have one officer being able to see every individual at every time. Certainly, in the system I ran, that was never the case, and I see systems all over the country. Depending on the design of the facility and the layout, many of them go straight from housing into recreation when they're not actually working and there's nobody to follow them back and forth between that process. When they're actually working and they've got tools in their hands and so on, then there's generally somebody who's more able to watch. But I also see all over people mowing lawns, working in gardens, other kinds of things with staff members only making periodic checks on them. So, again, there's a limit to how much you can do financially with staffing. You can't have one staff for every inmate or one staff for every single spot where anything could conceivably go wrong.

In DeLand's opinion, it was well within the scope of Deputy Newton's responsibilities that, if a trustee needed a tool, he would get it, and "there is no requirement that somebody be standing in the middle of the yard at all times waiting for the trustees to do something wrong while they're in recreation." But on cross-examination, he admitted that he could not name one prison that he "participated in designing where [he] recommended the use of limestone aggregate that would be available to an inmate" because "[y]ou don't recommend that they have anything like that in place."

The Sheriff then recalled Deputy Newton, who was questioned regarding his training as a correctional officer. Deputy Newton described his training, beyond police officer standardized training, as follows: "We go to in-services. It would consist of different report writing, handcuffing techniques, very minimal law, and just other miscellaneous." He further testified that he had never before witnessed rock throwing like the incident in this case, but agreed that the use of possible weapons is deterred by officer presence. He was not, however, required to be on the trustee yard at all times, and he and the other deputy working the trustee area would rotate rounds.

At the conclusion of testimony, the Sheriff proffered Major Picard's testimony about the ARP from the 2014 exception hearing, having reurged his exception of prematurity. The trial court noted that Deputy Singleton, while deceased at the time of trial, was not deceased at the time of the hearing in 2014, but the Sheriff had failed to call him to testify at that time.

Again taking the matter under advisement, the trial court found in favor of Mr. Pete, awarding $50,000.00 in general damages as follows: $10,000.00 for past, present, and future physical pain and suffering; $5,000.00 for past, present, and future mental pain and suffering; $10,000.00 for loss of enjoyment of life; and $25,000.00 for permanent disability. The trial court then assessed costs to the Sheriff.

In its written reasons, the trial court found that it was more probable than not that Deputy Singleton was not at his post that day, leaving Deputy Newton alone with the three trustees in the presence of rocks, which both experts agreed created an additional risk of danger in prison populations. Moreover, the court found Deputy Newton's lack of training was evident in his actions immediately before, during, and after the incident and highlighted the court's "concern regarding unattended trustees and the danger it involves." The court then concluded that the facts clearly established that

it was commonplace for trustees to be unsupervised and move freely about the facility. What is also clear, is that the defendant's failure to adequately train and supervise created an environment that a reasonably prudent man should have assumed would result in throwing the readily available aggregate. This Court finds that an ordinarily prudent person should have reasonably foreseen that his conduct would cause injury as that suffered by Mr. Pete. The defendant's failure to do so, falls below the standard of care for anyone housing or detaining prisoners.

As to its award of damages, the trial court found that "given the right employer and circumstances, Mr. Pete could still perform janitorial work." Though acknowledging Mr. Pete's failure to present any psychological or medical evidence, the trial court recited his testimony regarding the weakening of his right eye due to overcompensation, his intermittent sadness because of his appearance, the pain associated with the injury, and his residual pain. That testimony, coupled with his permanent and obvious disfigurement that will only worsen as the eye continues to sink, led the court to conclude that an award of $50,000.00 was sufficient compensation for Mr. Pete's damages.

III.

STANDARD OF REVIEW

An appellate court reviews the factual determinations of the trier of fact under the manifest error-clearly wrong standard of review. Rosell v. ESCO , 549 So.2d 840 (La.1989). The manifest error standard also applies when reviewing judgments on dilatory exceptions of prematurity. Barlow v. Garber , 17-401 (La.App. 3 Cir. 11/2/17), 230 So.3d 1002. Quantum awards, however, are subject to an abuse of discretion standard. Coco v. Winston Indus., Inc. , 341 So.2d 332 (La.1976).

IV.

LAW AND DISCUSSION

As previously recited, both the Sheriff and Mr. Pete have appealed to this court, raising several issues. Taking these issues in procedural order, we look first to the issue of whether the trial court erred in denying the Sheriff's exception of prematurity.

Prematurity

Louisiana Code of Civil Procedure Article 926(A)(1) provides for the dilatory exception raising the objection of prematurity when the applicable law has provided a procedure for a claimant to seek administrative relief before resorting to judicial action. Barlow , 230 So.3d 1002. In an exception of prematurity, the exceptor bears the initial burden of showing that an administrative remedy or procedure applies and "that the plaintiff failed to submit his claim for review before the administrative tribunal prior to filing suit." Mosley v. La. Dep't of Pub. Safety & Corrs. , 07-1501, p. 2 (La.App. 3 Cir. 4/2/08), 980 So.2d 836, 837. Once the existence of an administrative remedy is established, "the burden shifts to the plaintiff to prove that he has exhausted his administrative remedies or that the administrative remedies available to him are irreparably inadequate." Id.

Pursuant to La.R.S. 15:1184(A)(2), "[n]o prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted. If a prisoner suit is filed in contravention of this Paragraph, the court shall dismiss the suit without prejudice." Louisiana Revised Statute 15:1184(A)(1) defines "administrative remedies" as

written policies adopted by governmental entities responsible for the operation of prisons which establish an internal procedure for receiving, addressing, and resolving claims by prisoners with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison.

Significantly, however, if the governmental entity does not follow its own procedural requirements, any questions regarding the completion of its process is strictly construed against the entity as its failure cannot and should not enure to its own benefit. Wallace v. GEO Grp., Inc. , 11-863 (La.App. 3 Cir. 2/1/12), 84 So.3d 750.

As established by the evidence, the jail adopted a policy for the administrative resolution of inmate claims, including the present claim for damages. The policy, as set forth in the handbook, required the inmate to submit his ARP request to the warden within thirty days of the incident. Testimony established that an ARP request could be submitted to a deputy, who, in turn, was required to then deliver the form to the warden's inbox. There was, however, no policy for logging receipt or delivery of the request.

The parties do not dispute the existence of the ARP or of Mr. Pete's knowledge of the ARP as well as his need to follow it. Rather, the question is whether Mr. Pete actually filed an ARP request in the first place. On this point, the testimony seemingly conflicts with Mr. Pete stating that he gave his handwritten request to Deputy Singleton four days after the incident and the Sheriff claiming no such request was ever delivered to the warden. In support of his position, Mr. Pete submitted several copies of his handwritten request, which he made because he did not have access to a copy machine. The Sheriff submitted Mr. Pete's inmate file, which did not contain a copy of the request, but his witness admitted that Deputy Singleton was capable of accepting ARP requests. Given the lack of a logging protocol as well as the absence of Deputy Singleton's testimony, there is no definitive way in which to determine whether Mr. Pete filed his request with the deputy. What this ultimately came down to was a credibility call, which the trial court made in Mr. Pete's favor.

As has been long established,

[w]hen findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell , 549 So.2d at 844-45 (citations omitted). To establish manifest error, the Sheriff relies heavily upon the discrepancies in (1) the various handwritten copies of the ARP request submitted into evidence, particularly in their references to events that transpired weeks after the incident, and (2) Mr. Pete's testimony as to when he filed the various copies. However, the copies and Mr. Pete's testimony, though somewhat confusing, are not so internally inconsistent that a reasonable factfinder would not credit his story, particularly given the fact that the copies were admittedly handwritten over a period of weeks for the purpose of following up on the original grievance as well as to solicit legal representation.

Based on the record evidence, we find it was reasonable for the trial court to find that the Sheriff did not carry his burden of proof, given his failure to introduce any evidence or testimony that could refute Mr. Pete's assertion that he filed a request pursuant to the ARP. As the trial court stated, just because the warden did not receive the request does not prove Mr. Pete did not file a request. Moreover, because any failure in the administration of the ARP must accrue to benefit of the inmate, we find no error in the trial court's denial of the Sheriff's exception of prematurity.

Liability

Moving now to the issue of liability, the Sheriff argues that the trial court erred in finding him at fault. In its argument, the Sheriff focuses upon the trial court's reasons in which it found the Sheriff liable on the basis of his failure to train the deputies, the presence of the limestone aggregate in the trustee yard, and the deputies' failure to supervise the trustees.

In State ex rel. Jackson v. Phelps , 95-2294 (La. 4/8/96), 672 So.2d 665, 666-67, our supreme court set forth the duty-risk analysis applicable in negligence cases like this one:

In order to determine whether liability exists under the facts of a particular case, our court has adopted a duty-risk analysis. Under this analysis, plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Mundy v. Department of Health and Human Resources , 620 So.2d 811, 813 (La.1993). While a penal institution is not an insurer of an inmate against attacks by other inmates, penal authorities have a duty to use reasonable care in preventing harm after they have reasonable cause to anticipate it. Breaux v. State , 326 So.2d 481, 482 (La.1976) ; Parker v. State , 282 So.2d 483, 487 (La.), cert. denied , 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973). Whether the state breached its duty will depend on the facts and circumstances of each case. Manasco v. Poplus , 530 So.2d 548 (La.1988). Thus, we must determine whether the penal authorities at DCI had reasonable cause to anticipate harm to plaintiff and, if so, whether they failed to use reasonable care in preventing such harm.

The issue before this court, therefore, is whether, based on the record evidence, the Sheriff had reasonable cause to anticipate an inmate could be harmed by the throwing of limestone aggregate and, if so, whether the Sheriff failed to use reasonable care in preventing this harm. Based upon its judgment, the trial court clearly found the Sheriff had reasonable cause to anticipate the injury and failed to take reasonable steps to prevent it.

In order to reverse the trial court's factual findings, this court would have to satisfy a two-part test: (1) we would have to find from the record that no reasonable factual basis exists for the finding of negligence; and (2) we would then have to find that based on the entire record the finding was clearly wrong. Stobartv. State through Dep't of Transp. & Dev. , 617 So.2d 880 (La.1993). However, neither part of the test can be satisfied based on the record before us.

As to whether the Sheriff had reasonable cause to anticipate the injury, both experts agreed that, while the presence of limestone aggregate in the trustee yard was not negligence per se in that it did not violate any explicit standard, the presence of rocks did create an additional risk of danger for both the trustees and the guards. The Sheriff's expert even testified that he would not have and never did recommend the placement of aggregate in a prison yard. Although anything could be fashioned into a weapon with enough ingenuity, the experts as well as the warden and Deputy Newton all conceded that a rock, specifically the limestone aggregate, could be used as a weapon. Moreover, the testimony at trial revealed that rocks had been thrown or tossed before by trustees. The fact that no other previous incident of rock throwing resulted in injury does not negate the foreseeability of the present injury. Therefore, it is reasonable to conclude the Sheriff either knew or should have known that a rock could be thrown and result in injury to a trustee or a guard.

Expert testimony at trial further established that the Sheriff had a duty to remove known hazards or to supervise the trustees in the presence of these hazards, as both experts agreed a deputy's presence was enough of a deterrent. The record evidence does reasonably demonstrate a lack of supervision in this case.

The testimony clearly established that two guards were supposed to be on duty; however, the presence of one guard, Deputy Singleton, was never proven, leaving only Deputy Newton to supervise the trustees in the yard. In his testimony, Deputy Newton explained how he saw the whole incident but did nothing (1) when Mr. Perro first threw a rock at Mr. Handy, (2) when Mr. Handy next picked up a rock in retaliation, and (3) when Mr. Handy then threw the rock at Mr. Perro, hitting Mr. Pete. Mr. Pete's expert opined that Deputy Newton's failure to yell out or call for help was below the standard of care as was Deputy Singleton's failure to be at his post. This evidence more than adequately supports the trial court's finding that the Sheriff, on that day, through his deputies inaction and lack of supervision, failed to take the steps necessary to prevent the reasonably foreseeable injury. Therefore, we cannot find the trial court's finding of liability on the part of the Sheriff was manifestly erroneous based on this record. We do, however, find that the trial court erred in failing to apportion comparative fault.

Comparative Fault

Louisiana Civil Code Article 2323(A) provides, in pertinent part:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

In Thompson v. Winn-Dixie Montgomery, Inc. , 15-477, p. 14 (La. 10/14/15), 181 So.3d 656, 666-67, the supreme court recited the well-established factors a court considers in evaluating fault:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior, and, (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought.

A trial court's factual findings regarding percentages of fault cannot be reversed absent clear error. Purvis v. Grant Par. Sch. Bd. , 13-1424 (La. 2/14/14), 144 So.3d 922. We find, however, such error is present on this record in the trial court's failure to apportion any fault, particularly given Mr. Handy's uncontested admission that he threw the rock that injured Mr. Pete. Having found clear error, we are now charged with apportioning fault, but only to "the highest or lowest point respectively which is reasonably within the trier of fact's discretion." Brewer v. J.B. Hunt Transp., Inc. , 09-1408, p. 21 (La. 3/16/10), 35 So.3d 230, 244.

After reviewing the record in light of the factors recited above, we observe that the Sheriff was arguably in a superior position to prevent the injury in this case. While Mr. Handy's action was a contributing factor, the injuries here would not have occurred (1) if the limestone aggregate had not been present in the trustee yard, and (2) if reasonable supervision would have been provided by the deputies, one of whose presence could not be established and the other who admittedly failed to take any action after witnessing Mr. Perro cast the first stone. In short, had the rocks not been available to the trustees and had the Sheriff provided the supervision reasonably necessitated by the presence of the rocks, Mr. Pete would not have lost his left eye. Thus, we conclude that the record dictates that the Sheriff must bear the greater percentage of fault. Accordingly, we apportion 80% fault to the Sheriff and 20% fault to Mr. Handy, amounts that we find are the highest and lowest amounts the trial court could have reasonably allocated to them.

Quantum

In his sole assignment of error, Mr. Pete argues that the trial court abused its vast discretion in awarding only $50,000.00 in general damages for the loss of his left eye. Based upon the evidence of record, we agree.

Because general damages are inherently speculative in nature and cannot be fixed with mathematical certainty, the law grants the factfinder much discretion in their assessment. Youn v. Mar. Overseas Corp. , 623 So.2d 1257 (La.1993), cert. denied , 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Our role, as the reviewing court, is not to decide what we may consider to be an appropriate award, but rather to determine "whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it." Id. ; Bitoun v. Landry , 302 So.2d 278, 279 (La.1974). The adequacy of the award must be determined by the facts or circumstances particular to the case under consideration. Youn , 623 So.2d 1257. Only after finding an abuse of that broad discretion, based on the record, can we "disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court." Coco , 341 So.2d at 335.

While we recognize the uncertainty and honest disagreements that arise in evaluating and assessing issues of quantum, the facts and evidence of this case do not reasonably support the trial court's award, which we find is so low in relation to Mr. Pete's injury and permanent disfigurement that it shocks the conscience. Although there was no medical evidence, Mr. Pete's inmate file, his visual exhibits, and his testimony all document the loss of his left eye and the extensive surgery he had to endure, as well as the pain and suffering associated with both. The physical effects of his impairment, such as the weakness of his right eye from overcompensation and the permanent blind spot to his left, were also established through his testimony. His disfigurement resulting from the continued "sinking" of his left eye was clearly shown through the photographic evidence and observations of his person, while the sadness and embarrassment arising therefrom were clearly evident in Mr. Pete's testimony.

In all the cases submitted by the parties, the award of general damages for loss of eyesight in one eye exceeded $50,000.00, when inflation is taken into consideration.

See Hall v. Nix , 10-1146 (La.App. 4 Cir. 2/23/11), 60 So.3d 61 ($400,000.00 for injury to optic nerve, glaucoma, and vision loss in one eye resulting from medical malpractice); McPherson v. Lake Area Med. Ctr. , 99-1876 (La.App. 3 Cir. 5/24/00), 767 So.2d 102, writ denied , 00-1928 (La. 9/29/00), 770 So.2d 353 ($275,000.00 for left retinal arterial occlusion and permanent loss of vision resulting from medical malpractice); Berry v. State through Dep't of Health & Human Res. , 625 So.2d 600 (La.App. 3 Cir. 1993), rev'd on other grounds , 637 So.2d 412 (La.1994) ($70,000.00 for broken wrist, laceration on forehead, and injury to and decreased vision in one eye arising from automobile accident); Varnado v. Sanders , 477 So.2d 1205 (La.App. 1 Cir. 1985), writs denied , 481 So.2d 630 (La.1986) ($150,000.00 for corneal laceration, loss of iris and lens, and loss of vision in one eye resulting from contact with barbed wire); Outlaw v. Bituminous Ins. Co. , 357 So.2d 1350 (La.App. 4 Cir.), writ denied , 359 So.2d 1293 (La.1978) ($150,000.00 for loss of eyesight in one eye when struck with a golf ball); Fairchild v. Brian , 354 So.2d 675 (La.App. 1 Cir. 1977), writ denied , 356 So.2d 437 (La.1978) ($25,000.00 for loss of vision caused by delay in discovering detached retina ); Borne v. Bourg , 327 So.2d 607 (La.App. 4 Cir. 1976) ($30,000.00 for blindness in one eye resulting from being poked with finger); Walker v. Champion , 288 So.2d 44 (La.1973) ($100,000.00 loss of an eye resulting from hit with a beer bottle).

Not only has Mr. Pete lost his eyesight in his left eye, he has essentially lost the eye itself as the continued lack of pressure allows the eye to sink further into the socket, resulting in permanent disfigurement. The only case with a similar extensive loss of the eyeball itself was Walker , wherein the plaintiff was outfitted with a prosthetic eye, which would have prevented the sinking Mr. Pete now suffers, and the award in Walker would value over $570,000.00 today. Although Fairchild and Borne awarded damages below $50,000.00, the value of these awards would be around $100,000.00 and $130,000.00 in today's currency, respectively, and neither injury was as extensive or as disfiguring as Mr. Pete's injury.

Comparing the facts of this case and Mr. Pete's specific injuries with this jurisprudence, we find the sum of $150,000.00 to be the lowest amount of general damages the trial court could have reasonably awarded Mr. Pete. We, therefore, amend the judgment to increase Mr. Pete's general damage award from $50,000.00 to $150,000.00.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is amended to apportion 80% fault to the Sheriff and 20% fault to Mr. Handy and to increase the general damage award from $50,000.00 to $150,000.00. As amended, the judgment is affirmed.

Costs of this appeal are assessed to Sheriff Ronald J. Theriot.

AMENDED IN PART; AFFIRMED AS AMENDED.

      Mr. Pete initially named as defendants the State of Louisiana through the Department of Public Safety and Corrections and the St. Martin Parish Sheriff's Office. He subsequently amended his petition to name, as the proper party defendant, the Sheriff in his official capacity. The State was later dismissed on an unopposed peremptory exception of no cause of action.

      Both parties quoted current values for the awards. Any reference to current valuation made herein is based on calculations from the Consumer Price Index Inflation Calculator, rounded down to the nearest ten thousand, when utilizing as our base the month and year of the appellate decisions and March 2018. CPI Inflation Calculator , http://www.bls.gov (last visited April 13, 2018).


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    STATE of Louisiana v. Tyvon M. TURNER
    NO. 17-KA-498
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, TYVON M. TURNER, Prentice L. White
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore
   CHAISSON, J.

Defendant, Tyvon M. Turner, appeals his conviction and sentence for armed robbery. For the reasons that follow, we affirm defendant's conviction and sentence, and we further grant appellate counsel's motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On January 6, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant with armed robbery, in violation of La. R.S. 14:64, while armed with a firearm as per La. R.S. 14:64.3. Defendant pled not guilty at his arraignment.

On April 25, 2016, defendant withdrew his not guilty plea and, after being advised of his rights, pled guilty to armed robbery. In accordance with the plea agreement, the trial court sentenced defendant to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence. Defendant thereafter filed a motion to reconsider sentence, which was denied on August 2, 2016.

On June 19, 2017, the trial court granted defendant an out-of-time appeal.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed counsel requests permission to withdraw as attorney of record for defendant.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. State v. Bradford , 676 So.2d at 1110.

In this case, defendant's appellate counsel has complied with the procedures for filing an Anders brief. He sets forth the procedural history of the case, the limited facts, and the circumstances surrounding defendant's guilty plea and sentencing. Appellate counsel particularly notes that defendant was advised of the constitutional rights he would be waiving by pleading guilty and freely waived these rights. He acknowledges that defendant was advised of the possible sentencing range, as well as the actual sentence that would be imposed upon the acceptance of his guilty plea, and that defendant was sentenced in accordance with the plea agreement. Defendant's appellate counsel concludes that after a conscientious and thorough review of the appellate court record, he can find no non-frivolous issues to raise on appeal and no ruling of the trial court that arguably supports an appeal. Therefore, he requests permission to withdraw as attorney of record for defendant.

This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appellate record. Our review supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

We particularly note that the record reveals no constitutional infirmity or irregularity in defendant's guilty plea that would render it invalid. The transcript of the guilty plea proceeding and the acknowledgment and waiver of rights form show that defendant was aware of the nature of the charge against him, that he was properly advised of his Boykin rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty. In addition, the record reflects that defendant was advised by the trial court and in the waiver of rights form of the potential sentencing range for the charged offense and of the actual sentence that would by imposed upon acceptance of his guilty pleas. Further, defendant indicated that he was satisfied with the manner in which his case was handled by his counsel and the court, and that he was not forced, coerced, or threatened into pleading guilty. After the colloquy with defendant, the trial court accepted his guilty plea as knowingly, intelligently, freely, and voluntarily made.

With regard to defendant's sentence, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Augustine , 14-747 (La. App. 5 Cir. 5/14/15), 170 So.3d 1123, 1128. In this case, the trial court sentenced defendant, in conformity with the plea agreement that was set forth in the record, to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence. Further, defendant's sentence falls within the sentencing range prescribed by the statute. See La. R.S. 14:64. Based on the foregoing, we find that defendant's guilty plea and the sentence imposed pursuant to the plea agreement do not present any issues for appeal.

Lastly, we have reviewed the record for errors patent and have found none that require corrective action. La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990).

DECREE

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel's assertion, we grant appellate counsel's motion to withdraw as attorney of record for defendant, and we affirm defendant's conviction and sentence.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      The State agreed not to invoke the firearm enhancement.

      The trial court also ordered defendant to pay restitution to the victim in the amount of $552.00, as well as fines, fees, and costs.

      Both the appellate record and the briefs filed with this Court indicate that defendant also pled guilty on August 25, 2016, to misdemeanor charges in other district court case numbers. However, this appeal pertains only to the armed robbery charge in 24th Judicial District Court case number 16-26.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      During the guilty plea colloquy, the trial court advised defendant that upon acceptance of his guilty plea, he would be sentenced to seventeen years at hard labor without benefit of parole, probation, or suspension of sentence, which was the original sentencing offer by the State. However, during the course of the proceedings, the trial judge indicated that he wanted to sentence defendant to a lesser sentence of fifteen years because of defendant's cooperation and courteous nature. The State agreed to this reduced sentence, and the trial court thereafter sentenced defendant to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence.

      In addition, defendant was notified of his right to file a pro se supplemental brief in this appeal. As of this date, defendant has not filed a pro se brief.

      See Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


text:
    Blanca Nu MOYA, Luis F Monterroso, Manumaht Adinaryan and the American Federation of State County and Municipal Employees, Local 234 Through Niran Grunasekara v. CITY OF KENNER, THROUGH its Mayor, the Honorable, Ben ZAHN
    NO. 17-CA-666
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, BLANCA NU MOYA, ET AL, Madro Bandaries
    COUNSEL FOR DEFENDANT/APPELLEE, CITY OF KENNER, Leigh H. Roussel, Kenner, Edward S. Rapier
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   CHAISSON, J.

Plaintiffs appeal a judgment of the trial court that denied their Petition for Writ of Mandamus against City of Kenner. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On July 14, 2017, Blanca Nu Moya, Luis F. Monterroso and Manumaht Adinaryan, individual Kenner taxi cab drivers, along with their union, American Federation of State County and Municipal Employees, Local 234, filed a Petition for Writ of Mandamus against City of Kenner in which they requested that the trial court issue a writ of mandamus directing City of Kenner to "correct and cease its arbitrary or capricious abuse of their discretion in refusing to enforce the Code of Ordinances" regarding the imposition of an occupational license tax against Transportation Network Company ("TNC") drivers, such as "Rasier" and "Lyft." Specifically, plaintiffs alleged that as "Kenner CPNC taxi cab drivers," they are licensed by City of Kenner and are required to qualify for and pay a levy for an annual occupational license in accordance with Article IV, Section 10-53, of the Kenner Code of Ordinances. Plaintiffs further alleged that City of Kenner was not enforcing this same provision of the Code of Ordinances as to other similarly situated competitors, such as TNC drivers, despite the fact that these other drivers are legally required to qualify for and pay the same occupational license tax. At plaintiffs' request, the trial court set a rule to show cause for hearing on July 25, 2017.

In response, on July 21, 2017, City of Kenner filed an opposition to the petition for mandamus and an incorporated peremptory exception of no cause of action. In its supporting memorandum, City of Kenner argued that the petition did not state a cause of action because a "writ of mandamus may only be issued when the duty is ministerial" and it must be denied "when a Plaintiff is seeking to compel the performance of an act which contains any element of discretion, however slight." City of Kenner argued that since it had discretion regarding enforcement of its ordinances, that the enforcement of the Code of Ordinances was not a ministerial duty and plaintiffs therefore had no cause of action against City of Kenner. In that portion of its memorandum directed to its opposition to the writ of mandamus, City of Kenner likewise argued that it enjoys wide discretion in its decisions as to the enforcement of the Code of Ordinances and the manner in which it uses its limited resources to enforce its ordinances. Consequently, City of Kenner argued that issuance of a writ of mandamus was not appropriate. Despite its filing of an incorporated Exception of No Cause of Action, City of Kenner failed to request that its exception be set for hearing.

Thereafter, on July 24, 2017, plaintiffs filed a reply memorandum to the exception of City of Kenner wherein they clarified that the allegations against City of Kenner in their petition are allegations that City of Kenner has been enforcing its occupational license tax in a discriminatory manner that violates equal protection principles of the Fourteenth Amendment of the United States Constitution. In response, on that same date, City of Kenner filed a reply memorandum in which it alleged that "Kenner's occupational license law is enforced equally..."

At the start of the hearing on July 25, 2017, after being advised that City of Kenner had filed an exception to the petition, the trial court indicated that because there was no rule to set the exception for hearing, it was not set for hearing. Thereafter, without objection from either party, the trial court proceeded to hear the merits of the Petition for Writ of Mandamus without first disposing of City of Kenner's Exception of No Cause of Action. Counsel for both parties proceeded to make argument to the trial court, however, neither party called any witnesses or introduced any exhibits into evidence. On that same date, the trial court rendered judgment denying plaintiffs' Petition for Writ of Mandamus, stating in subsequently-issued reasons for judgment that "[t]he decision as to the method and means of enforcement of ordinances necessarily contains an element of discretion ..." and therefore finding that "... [the Court] lacks the authority to compel the Defendant to perform the task which is requested by the Plaintiffs."

It is from this judgment that plaintiffs now timely appeal.

DISCUSSION

The threshold question before the trial court in this case, raised by City of Kenner's Exception of No Cause of Action, was whether or not plaintiffs have a cause of action, specifically, for a writ of mandamus. However, the trial court expressly declined to hear City of Kenner's Exception of No Cause of Action, and, without objection from either party, proceeded to purportedly try the merits of the writ of mandamus. Although the trial court's reasons for judgment seem to suggest that it applied an analysis of a no cause of action exception to reach its conclusion in the case, there is nothing in the transcript from the hearing on July 25, 2017, or in the judgment itself, that indicates that the trial court actually ruled on the exception of no cause of action. Under these circumstances, we are constrained from reviewing the judgment as one sustaining the exception of no cause of action. While we ordinarily might consider vacating the judgment and remanding the matter to the trial court for proper disposal of the exception of no cause of action prior to holding a trial on the merits, because we find, for the reasons stated below, that the result of the judgment on the merits is correct, we decline to vacate and remand.

Mandamus is an extraordinary remedy which should be applied only where ordinary means fail to afford adequate relief. La. Assessors' Ret. Fund v. City of New Orleans , 01-0735 (La. 2/26/02), 809 So.2d 955, 956. Plaintiffs, as the parties seeking the writ, had the burden of proof to establish that they were entitled to the relief provided by this extraordinary remedy. Id. ; La. C.C.P. art. 3862. Under this burden, in addition to showing that the law provided no relief by ordinary means, or that the delay involved in obtaining ordinary relief may cause injustice, plaintiffs were required to provide evidentiary support for the allegations contained in their writ at the contradictory hearing. See Lens v. Landrieu , 16-0639 (La. App. 4 Cir. 12/14/16), 206 So.3d 1245, 1248. In this case, plaintiffs alleged that City of Kenner was exercising its discretion in enforcement of the ordinance in a way that discriminated against plaintiffs and/or violated equal protection principles of the Fourteenth Amendment; however, plaintiffs merely presented allegations and argument to the trial court. They called no witnesses and introduced no exhibits, and thereby failed to provide any evidence upon which a ruling in their favor could be based. We therefore find that the judgment denying plaintiffs' writ of mandamus is correct.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court denying plaintiffs' writ of mandamus. Plaintiffs' petition is dismissed with prejudice.

AFFIRMED

      Plaintiffs erroneously refer to "Rasier" as "Riser." Rasier, LLC is a subsidiary of the ridesharing company more popularly known as "Uber."

      Plaintiffs in their petition do not explain what a "CPNC taxi cab driver" is.

      In its reply memorandum, City of Kenner raised additional issues which were not considered by the trial court and which are not germane to resolution of this appeal. We therefore refrain from discussion of those issues herein.

      Although we decline to analyze the exception of no cause of action because there was no ruling thereon, we note that, because the manner in which a governmental entity allocates its resources in the enforcement of its ordinances inherently involves an element of discretion, we have serious reservations as to whether a writ of mandamus is the proper procedural vehicle for plaintiffs to seek redress of their grievances. In so noting, we do not in any way suggest that City of Kenner has discretion to enforce its ordinances in a manner that is discriminatory or violates equal protection principles of the Fourteenth Amendment; rather, we merely suggest that because City of Kenner does have discretion in the enforcement of its ordinances, redress for alleged discriminatory enforcement may be through alternative causes of action, such as for damages and/or injunctive relief, rather than by writ of mandamus.


author: LILJEBERG, J.

text:
    Calley Clark MCLAUGHLIN v. John Williams MCLAUGHLIN
    NO. 17-CA-645
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CALLEY CLARK MCLAUGHLIN, Richard T. Gallagher, Jr.
    COUNSEL FOR DEFENDANT/APPELLEE, JOHN WILLIAMS MCLAUGHLIN, Roland A. Ditta
    Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

Plaintiff/Appellant, Calley Clark McLaughlin, appeals the trial court's judgment dismissing her Petition for Partition of Community Property with prejudice. For the reasons set forth more fully below, we affirm the trial court's judgment in part, reverse in part and remand to complete the community partition proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves the division of community property between a formerly married couple, Calley McLaughlin and John Williams McLaughlin. The parties married on March 15, 2008. Ms. McLaughlin filed a petition for divorce on June 7, 2010, and a judgment of divorce was granted on August 9, 2012. Ms. McLaughlin filed a Petition for Partition of Community Property on June 10, 2013. She submitted discovery to defendant requesting, in part, bank statements. When Mr. McLaughlin failed to answer, Ms. McLaughlin filed a motion to compel on April 28, 2014. On June 10, 2014, the parties entered into a consent judgment providing for Mr. McLaughlin to obtain bank statements from the start of the marriage. The parties agreed to split the costs to obtain the records.

On October 15, 2014, Ms. McLaughlin filed a motion to set deadlines to file sworn detailed descriptive lists. On October 29, 2014, she also filed a rule for contempt after Mr. McLaughlin failed to obtain the bank statements as agreed. On December 11, 2014, the parties agreed to allow him an additional 45 days to obtain the statements. However, Mr. McLaughlin never complied with the trial court's order.

On January 21, 2015, the parties entered into a consent agreement providing for each to file sworn descriptive lists within 45 days and traversals within 60 days of the filing of the last descriptive list. Ms. McLaughlin filed a sworn descriptive list of assets on March 31, 2015. Mr. McLaughlin did not file a list of assets and did not file a traversal of Ms. McLaughlin's descriptive list. Ms. McLaughlin did not seek an order to have her list deemed a judicial determination of the community assets.

The parties agreed to set the community property partition for trial on April 3, 2017. At trial, Ms. McLaughlin argued the parties purchased several community assets during the marriage which must be partitioned, and further sought reimbursement for separate and community funds expended to improve Mr. McLaughlin's separate residence. The trial was brief and the parties were the only witnesses to testify. No exhibits were introduced into evidence and Mr. McLaughlin did not call any witnesses.

Following trial, the court allowed the parties time to submit post-trial briefs and took the matter under advisement. On May 22, 2017, the trial court entered a judgment dismissing Ms. McLaughlin's claims against Mr. McLaughlin without prejudice. Though Mr. McLaughlin agreed during his testimony that the parties purchased community assets during the marriage, the trial court did not divide or allocate any of these assets between the parties. On June 5, 2017, Mr. McLaughlin filed a timely motion for new trial asking the trial court to dismiss the matter with prejudice, rather than without prejudice. On August 14, 2017, the trial court granted the motion for new trial and set the matter on its docket for September 1, 2017. On that date, the trial court amended its prior judgment to dismiss Ms. McLaughlin's claims with prejudice. On September 1, 2017, Ms. McLaughlin filed a timely motion and order for appeal, which the trial court granted the same day.

DISCUSSION

In her first assignment of error, Ms. McLaughlin argues the trial court erred by dismissing her Petition for Partition of Community Property with prejudice instead of partitioning the community property. She argues that she filed a sworn descriptive list and introduced evidence establishing that the parties acquired community assets during their brief marriage. She also contends that she introduced evidence regarding the value of these assets which Mr. McLaughlin failed to contradict.

The provisions of La. R.S. 9:2801 set forth the procedure by which a trial court is to partition community property when the spouses are unable to agree on the division of assets and liabilities. Vedros v. Vedros , 16-735 (La. App. 5 Cir. 10/25/17), 229 So.3d 677, 680, writ denied , 17-2119 (La. 2/23/18), 237 So.3d 1185 and 18-004 (La. 2/23/18), 237 So.3d 520. The procedures to partition community property set forth in La. R.S. 9:2801 are mandatory. La. C.C. art. 2369.8 ;

Tanana v. Tanana , 12-1013 (La. App. 1 Cir. 5/31/13), 140 So.3d 738, 742.

La. R.S. 9:2801(A)(1)(a) provides that within 45 days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. Within 60 days of the date of service of the last-filed detailed descriptive list, each party shall either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party. La. R.S. 9:2801(A)(2). At a trial of the traverses, the court must determine the community assets and liabilities, and the valuation of assets is determined at the trial on the merits. Id. However, as in this case, the court may determine all issues, including those raised in the traverses, at one hearing. Id.

After determining the community assets, La. R.S. 9:2801(A)(4) requires the trial court to value and partition these assets in accordance with the following rules:

(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.
(e) In the event that the allocation of an asset, in whole or in part, would be inequitable to a party, the court may order the parties to draw lots for the asset or may order the private sale of the asset on such terms and conditions as the court deems proper, including the minimum price, the terms of sale, the execution of realtor listing agreements, and the period of time during which the asset shall be offered for private sale.
(f) Only in the event that an asset cannot be allocated to a party, assigned by the drawing of lots, or sold at private sale, shall the court order a partition thereof by licitation. The court may fix the minimum bids and other terms and conditions upon which the property is offered at public sale. In the event of a partition by licitation, the court shall expressly state the reasons why the asset cannot be allocated, assigned by the drawing of lots, or sold at private sale.

It is incumbent upon the trial court to follow the procedures outlined in La. R.S. 9:2801. McElwee v. McElwee , 93-1010 (La. App. 1 Cir. 8/17/94), 649 So.2d 975, 977. It is incumbent upon the parties to present evidence at the partition trial regarding the value of the assets. Ponson v. Ponson , 17-469, p. 10 (La. App. 5 Cir. 3/14/18), 241 So.3d 1213, 2018 WL 1310036, 2018 La. App. LEXIS 461. The purpose of a partition under La. R.S. 9:2801 is for the trial court to make an immediate and final apportionment of the assets and liabilities. Id. ; Stewart v. Stewart , 585 So.2d 1250, 1253-54 (La. App. 4th Cir. 1991), writ denied , 590 So.2d 594 (La. 1992).

The trial court has broad discretion in adjudicating issues raised by partition of the community and is afforded great latitude in arriving at an equitable distribution of assets between spouses. Vedros, 229 So.3d at 680. The allocation or assignment of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Id. Factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Ponson , 17-469, 241 So.3d at ----, 2018 WL 1310036, 2018 La. App. LEXIS 461, p. 9 ; Benoit v. Benoit , 11-376 (La. App. 1 Cir. 3/8/12), 91 So.3d 1015, 1019, writ denied , 12-1265 (La. 9/28/12), 98 So.3d 838.

On appeal, Ms. McLaughlin claims the undisputed evidence established that the following items are community assets purchased during their marriage:

1. 2007 Harley Davidson Duce;
2. 2009 Harley Davidson Glide;
3. Boat motor and top;
4. Household items including a refrigerator, stove/oven, hot tub, fence, and miscellaneous "remaining household items;"
5. Motorcycle trailer; and
6. Capital One checking account and savings account.

Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. La. C.C. art. 2340. This presumption of community is rebuttable by either spouse upon a showing by a preponderance of the evidence the separate nature of property brought into the community. Talbot v. Talbot , 03-814 (La. 12/12/03), 864 So.2d 590, 600.

By dismissing the matter with prejudice against Ms. McLaughlin, we assume the trial court determined that none of the items listed above qualified as community assets. However, after reviewing the record, we agree with Ms. McLaughlin that the undisputed evidence supports a finding that certain items qualify as community assets and the trial court was manifestly erroneous by failing to recognize and value these community assets.

2007 Harley Davidson Duce

First, with respect to the 2007 Harley Davidson Duce, the parties both testified that they purchased this motorcycle during their marriage. The undisputed evidence also established the motorcycle was stolen several years prior to the trial. Mr. McLaughlin agreed that he received insurance proceeds for the loss, but he could not recall the amount of the check. At trial, Ms. Laughlin testified that the current value assigned by the National Automobile Dealer Association ("NADA") Guide for the motorcycle was $7,915.00. This amount is presumably less than the value of the motorcycle at the time Mr. McLaughlin received the insurance proceeds several years earlier. Mr. McLaughlin did not present any evidence to contradict Ms. McLaughlin's evidence regarding the value of the 2007 Harley Davidson Duce at the time of the trial.

On appeal, Mr. McLaughlin argues Ms. McLaughlin failed to present any documents or exhibits to establish the condition or value of the assets. However, Mr. McLaughlin agreed the motorcycle was purchased during the marriage and that he received the insurance proceeds after it was stolen. As a result, we find the trial court was manifestly erroneous in failing to designate the 2007 Harley Davidson Duce as a community asset. We further recognize Ms. McLaughlin's uncontroverted testimony regarding the $7,915.00 NADA value of the motorcycle. Because the asset was converted to insurance proceeds retained by Mr. McLaughlin and neither party could provide the exact amount of the proceeds, we find that Ms. McLaughlin is entitled to receive $3,957.50, which represents half of the NADA value.

2009 Harley Davidson Glide

Mr. McLaughlin also agreed that the parties purchased a 2009 Harley Davidson Glide during the marriage and did not contradict Ms. McLaughlin's testimony regarding the $11,545.00 NADA value at the time of trial. On appeal, Mr. McLaughlin complains Ms. McLaughlin did not present the title or registration for this asset, no exhibits regarding the value, and no evidence regarding the current condition of the motorcycle. However, Mr. McLaughlin admitted at trial that he was currently in possession of this motorcycle and offered no evidence regarding the current condition of the motorcycle to counter Ms. McLaughlin's testimony regarding the NADA value. Therefore, we find the trial court was manifestly erroneous in failing to recognize the 2009 Harley Davidson Glide as a community asset and also recognize the $11,545.00 NADA value supplied by Ms. McLaughlin.

Capital One Checking and Savings Accounts

Ms. McLaughlin testified that the parties maintained a Capital One checking account (ending in # 7924) and savings account (ending in # 1593) during their marriage. Mr. McLaughlin admitted the parties maintained these joint accounts during their marriage. In addition, as explained above, the trial court ordered Mr. McLaughlin to obtain copies of the statements for these accounts, but he failed to comply with the court order. At trial, Ms. McLaughlin testified that she wrote down the balance amount for each account at the time she filed the petition for divorce on June 7, 2010. She testified that the balance in the checking account at that time was $4,400.00 and the balance in the savings account was $1,008.20.

Again, Mr. McLaughlin presented no evidence to counter this testimony. On appeal, Mr. McLaughlin argues that Ms. McLaughlin admitted she had access to these joint bank accounts and failed to provide documents to prove the balance in these accounts at the time she filed for divorce. We find Ms. McLaughlin's uncontested testimony regarding the balance of these accounts was sufficient to establish their value. Therefore, we find the trial court was manifestly erroneous by failing to recognize these accounts as community assets and we recognize the undisputed evidence regarding the balances in these accounts, $4,400.00 for the checking account and $1,008.20 for the savings account, at the time Ms. McLaughlin filed for divorce.

Motorcycle Trailer

Ms. McLaughlin testified that the parties purchased a trailer to transport their motorcycles during the marriage. Mr. McLaughlin denied purchasing any trailers during the marriage. We defer to the trial court's decision regarding the credibility of the witnesses and deny Ms. McLaughlin's request to reverse the trial court's decision against recognizing the trailer as a community asset.

Boat Motor and Top

Ms. McLaughlin argues the trial court erred by failing to find the boat motor and top were community assets and by failing to value them. She testified these items were purchased during the marriage and they paid $24,000.00 for the boat motor and $2,000.00 for the top. Mr. McLaughlin could not recall when they purchased these items. Neither party provided evidence regarding the value of these items at the time of trial. When the parties do not submit evidence of the current value of community assets, the trial court does not err in making its valuations based upon other evidence presented by the parties. Gill v. Gill , 39,406 (La. App. 2 Cir. 3/9/05), 895 So.2d 807, 812. However, the valuation must be supported by evidence in the record. See Ellington v. Ellington , 36,943 (La. App. 2 Cir. 3/18/03), 842 So.2d 1160, 1166, writ denied , 03-1092 (La. 6/27/03), 847 So.2d 1269.

Considering Ms. McLaughlin's undisputed testimony, we find the trial court was manifestly erroneous by failing to recognize the boat motor and top as community assets. With respect to the value of these assets, Ms. McLaughlin provided information regarding the purchase price, but neither party provided information regarding their current value or any other detailed evidence regarding these items which would have assisted the trial court in determining their value as of the time of trial. Therefore, we remand this matter to the trial court to receive evidence from the parties regarding the value of the boat motor and top as of the time of trial. Assuming the boat motor and top are still in Mr. McLaughlin's possession, he shall allow Ms. McLaughlin access to value these items if requested.

Household Items

Finally, Ms. McLaughlin argues the trial court erred by failing to recognize and value certain "household items" as community assets. She also argues in her second assignment of error that the trial court erred by refusing to allow her to refresh her recollection with respect to the value of these assets. Alternatively, Ms. McLaughlin contends that she provided sufficient evidence to designate the following "household items" as community assets and to value them as indicated below:

1. Refrigerator $1,100.00 2. Stove/Oven $3,000.00 3. Hot Tub $6,000.00 4. Fence $6,600.00 5. Remaining Household $10,000.00 Items

Ms. McLaughlin testified she left the household items they purchased during the marriage in Mr. McLaughlin's home and did not take any of them with her when she left. She first testified that they purchased a refrigerator and a stove, but she could not recall the amount of the purchase price. Her counsel asked if it would help to look at her notes to her refresh her recollection. Opposing counsel objected on the basis that Ms. McLaughlin did not share this document as part of the discovery he requested prior to trial. Her counsel argued the document Ms. McLaughlin wanted to use to refresh her recollection were handwritten notes made for counsel. He argued the notes were not discoverable and that he did not intend to introduce the notes as an exhibit. The trial court sustained the objection on the basis that the document was not turned over in discovery.

Despite the trial court's decision to sustain the objection, Ms. McLaughlin later testified she paid $1,100.00 for the refrigerator, $3,000.00 for the stove and oven, $6,000.00 for a hot tub installed at Mr. McLaughlin's separate home and $6,600.00 for a fence also installed on his property. With respect to the "remaining household items," Ms. McLaughlin testified that during their marriage, they purchased a kitchen set, bedroom set and living room set. They also purchased three televisions, including a 60-inch television, and a DVD player. She also mentioned items they received as wedding presents, including a blender, mixer and pots and pans. She estimated that these "remaining household items" were worth $10,000.00.

First, we find that because Ms. McLaughlin eventually testified regarding the purchase price of the household items, her assignment of error regarding the trial court's alleged error in denying her the opportunity to refresh her recollection is moot. We also recognize that Mr. McLaughlin provided no evidence whatsoever to counter Ms. McLaughlin's testimony that the household items listed above were community property. Therefore, we find the trial court was manifestly erroneous by failing to recognize the household items noted above as community assets.

Again, neither party provided specific evidence at trial regarding the current value of each household item or any other detailed evidence which would have assisted the trial court in determining their value as of the time of trial. Therefore, we also remand this matter to the trial court to receive evidence from the parties regarding the value of the household items noted above as of the time of trial. If these items are still in Mr. McLaughlin's possession, he shall allow Ms. McLaughlin access to value these items if requested.

Reimbursement Claims

Finally, Ms. McLaughlin contends the trial court erred by failing to find she is entitled to a reimbursement for the $16,000.00 in community funds used to enhance Mr. McLaughlin's separate property by adding on a garage with a porch and outside kitchen to his separate home. She also contends that she should be reimbursed for $15,000.00 of her separate funds used as a down payment for his home.

La. C.C. art. 2366 provides, in pertinent part, that when community funds are used for the "improvement, or benefit of the separate property of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the community property had at the time it was used." This provision further states:

Buildings, other constructions permanently attached to the ground, and plantings made on the separate property of a spouse with community property belong to the owner of the ground. The other spouse is entitled to reimbursement for one-half of the amount or value that the community property had at the time it was used.

La. C.C. art. 2366.

The burden of proof is on the party claiming reimbursement. Vedros , 229 So.3d at 685 ; Charles v. Charles , 05-129 (La. App. 1 Cir. 2/10/06), 923 So.2d 786. A trial court's findings as to whether reimbursement claims have been sufficiently established are reviewable under the manifest error standard of review. Vedros , 229 So.3d at 681 ; Kline v. Kline , 98-1206 (La. App. 3 Cir. 2/10/99), 741 So.2d 670.

Ms. McLaughlin first testified that $16,000.00 in community funds were used to add a garage to Mr. McLaughlin's separate property. Mr. McLaughlin agreed they added the garage to his separate property during their marriage and did not contest the cost for the improvement provided by Ms. McLaughlin. Therefore, based on the uncontested testimony, we find the trial court erred in denying Ms. McLaughlin's reimbursement claim in the amount of $8,000.00 for the community funds used to improve Mr. McLaughlin's separate property by adding a garage.

With respect to the second reimbursement claim, Ms. McLaughlin testified that before they married, she provided $15,000.00 of her separate funds for the down payment on Mr. McLaughlin's separate home. Because the payment did not occur during the community property regime, we find the trial court did not err in denying this reimbursement claim. See Goines v. Goines , 09-994 (La. App. 5 Cir. 3/9/11), 62 So.3d 193, 207, writ denied , 11-721 (La. 5/20/11), 63 So.3d 984.

DECREE

Based on the foregoing, we affirm the trial court's judgment to the extent it excluded the boat trailer from community assets and denied Ms. McLaughlin's reimbursement claim for the $15,000.00 down payment. We otherwise reverse the trial court's judgment as set forth more fully in this opinion and remand the matter to the trial court to hold a hearing to accept additional evidence to determine the value of the boat motor and top, as well as the household items, as of the time of trial. Once the trial court determines the value of these assets as required by La. R.S. 9:2801(4)(a), the trial court shall complete the partition of the community assets addressed in this opinion in accordance with the applicable guidelines set forth in La. R.S. 9:2801(4).

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS

      La. R.S. 9:2801(A)(1)(a) provides that if "a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities."

      The trial court sustained objections to both of the exhibits Ms. McLaughlin sought to introduce into evidence on the grounds that they were not provided to the opposing party prior to trial. Ms. McLaughlin does not challenge the trial court's rulings on these exhibits on appeal.

      On July 13, 2017, Ms. McLaughlin filed a motion and order for appeal, which the trial court signed on July 17, 2017. However, La. C.C.P. art. 2087(D) provides that an "order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions." In this instance, the trial court granted the motion for new trial and amended the judgment. Therefore, the July 17, 2017 order of appeal never became effective.

      La. C.C. art. 2369.8 provides that "[i]f the spouses are unable to agree on the partition, either spouse may demand judicial partition which shall be conducted in accordance with R.S. 9:2801."

      The Louisiana Supreme Court has recognized the use of NADA Guide valuations. See State Farm Mut. Auto Ins. Co. v. Berthelot , 98-1011 (La. 4/13/99), 732 So.2d 1230, 1235. Furthermore, courts have recognized that NADA values are admissible pursuant to the hearsay exception provided in La. C.E. art. 803(17) ("... Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations."). See Neloms v. Empire Fire & Marine Ins. , 37,786 (La. App. 2 Cir. 10/16/03), 859 So.2d 225, 232 ; State v. Batiste , 99-1481 (La. App. 1 Cir. 3/31/00), 764 So.2d 1038, 1040, writ denied , 00-1648 (La. 6/22/01), 794 So.2d 778.

      The community property regime is terminated by a judgment of divorce. La. C.C. art. 2356. A judgment of divorce terminates the 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. 159.

      La. R.S. 9:2801(A)(4)(a) provides that the court shall value the community assets as of the time of the trial.

      Mr. McLaughlin did not file a motion to compel Ms. McLaughlin to respond to his discovery requests.

      The Court questions whether Ms. McLaughlin's claims regarding the fence and hot tub should be alternatively considered as reimbursement claims if these items are permanently attached to Mr. McLaughlin's separate property as provided for in La. C.C. art. 2366.