author: ROLAND L. BELSOME, Judge.

text:
    Irma REGIS v. DEPARTMENT OF POLICE.
    No. 2009-CA-1013.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 2010.
    Rehearing Denied March 4, 2010.

      C. Theodore Alpaugh III, Claude A. Schlesinger, Guste Barnett Schlesinger Henderson & Alpaugh, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Penya Moses-Fields, City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, James B. Mullaly, Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|, Sgt. Irma Regis, an employee of the New Orleans Police Department (NOPD), seeks reversal of the decision of the Civil Service Commission, denying her appeal of the discipline imposed by the appointing authority, the NOPD. For the following reasons, we affirm the Commission’s ruling.

On July 7, 2007, an individual causing a disturbance at an establishment on Bourbon St. in New Orleans was arrested. When the arrestee was placed in the patrol wagon for transport, he became combative and began banging himself up against the sides of the patrol wagon and screaming. Sgt. Russell, a supervisor on the scene, opened the doors to the patrol wagon and attempted to better secure the arrestee. Upon seeing Sgt. Russell’s actions, Sgt. Regis commented, “You are gonna (sic) kill him.” Sgt. Regis made further comments. Subsequently, the NOPD conducted an investigation into the events occurring after the arrest.

After the investigation, the NOPD disciplined Sgt. Regis, alleging she violated the NOPD rules regarding professionalism and truthfulness. The NOPD issued a letter of reprimand for the violation of the rule regarding professionalism and a three day suspension for the violation of the rule regarding truthfulness.

[¡>Sgt. Regis filed an appeal to the Commission, seeking review of the discipline imposed by the NOPD. The Commission appointed a hearing officer to take testimony. At the hearing, Lt. Derek Frick testified that he was assigned to conduct an investigation into the incident. During his investigation, Lt. Frick spoke with several officers who were on the scene. Lt. Frick determined that Sgt. Regis made statements which were unprofessional and were made in front of other officers as well as members of the public.

Lt. Frick received information from officers at the scene. The officers consistently stated that Sgt. Regis told Sgt. Russell, “You gonna (sic) kill him,” referring to the arrested individual; “I’m not gonna (sic) lose my stripes over you; you gonna (sic) cause these officers to lose their jobs;” and “I’m gonna (sic) f— him, he wants to be stupid.” Lt. Frick stated that the proper procedure would have been for Sgt. Regis to pull Sgt. Russell to the side, away from the other officers and the public, to discuss any concerns she might have had with Sgt. Russell’s handling of the arrested individual. Lt. Frick’s investigation did not reveal that the arrest was mishandled.

Officers Angela Joanos, Jacquelyn Robinson, and Jason Caldwell were on the scene and attested to the statements that were made by Sgt. Regis during the arrest. Their testimony was consistent with the statements elicited in the course of Lt. Frick’s investigation.

According to Sgt. Regis’ testimony, she was on the scene but not part of the arrest. While there, she observed Sgt. Russell handling the arrestee and believed he was going to drop him onto the ground. Sgt. Regis admitted she said, “Y’all gonna (sic) kill him.” Next, Sgt. Russell placed flex cuffs on the arrestee and then placed him back into the patrol wagon. Sgt. Re-gis observed Sgt. Russell close the legate that blocks ventilation when the patrol wagon is stationary. At that time, she heard the arrestee say he could not breathe and ask for help. Eventually, Sgt. Russell entered the patrol wagon and loosened the flex cuffs and EMS was called.

Sgt. Regis admitted saying, “I’m not gonna (sic) lose my stripes for what you doing. And I’m not — these officers gonna (sic) wind up losing their jobs.” Sgt. Regis stated she believed she was in an emergency situation and may have said things she does not recall in the midst of the excitement. However, Sgt. Regis denied using the “f” word. That was consistent with her statement to the public integrity bureau.

Sgt. Regis admitted that she is aware of the NOPD’s rules governing professional conduct and that it would be unprofessional for any officer to use curse words when speaking about another officer in view of the public or other officers. Sgt. Regis further acknowledged that violating the NOPD rules governing professional conduct could humiliate or embarrass another employee and also bring discredit to the NOPD.

Upon hearing the testimony and reviewing the evidence, the hearing officer found the actions of the NOPD in disciplining Sgt. Regis to be justified. The Commission, after reviewing the evidence, dismissed the appeal, thus upholding the discipline imposed by the NOPD.

The Commission has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const. art. X, § 12; Pope v. New Orleans Police Dept., 2004-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause.

| ¿The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 2006-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service employees is only against firing (or other discipline) without cause. La. Const, art. X, § 12; Cornelius v. Dept. of Police, 2007-1257, p. 8 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 2000-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

The decision of the Commission is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. art. X, § 12; Cure, 2007-0166, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the Commission’s order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the Commission is “arbitrary and capricious” if there is no rational basis for the action taken by the Commission. Cure, 2007-0166, p. 2, 964 So.2d at 1095.

This Court has found that in reviewing the discipline of a civil servant, “[t]he Commission should give heightened regard to the appointing authorities that serve as special guardians of the public safety and operate as quasi-military institutions where strict discipline is imperative.” Whitaker v. New Orleans Police Dept., 2003-0512, p. (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 575, citing Joseph v. Dept. of Health, 389 So.2d 739, 741 (La.App. 4 Cir.1980). Where there is conflicting testimony, credibility evaluations cannot be disturbed on review. Williams v. Sewerage & Water Bd., 2004-0025, p. 7 (La.App. 4 Cir. 5/19/04), 876 So.2d 117, 121, citing Moore v. New Orleans Police Dept., 2001-0174, p. 8 (La.App. 4 Cir. 3/7/02), 813 So.2d 507, 511.

In her first assignment of error, Sgt. Regis alleges the Commission erred in upholding the discipline imposed by the NOPD as the NOPD failed to prove that Sgt. Regis violated the rules governing professionalism or truthfulness.

Lt. Frick testified that his investigation revealed that four officers heard Sgt. Re-gis make the statements and three officers testified to the same at the hearing. Sgt. Regis only disputes that she made the statements containing the “f ’ word.

In this instance, the Commission chose to believe the consistent statements of the other officers over Sgt. Regis. The Commission noted Sgt. Regis’ concern for the arrested individual, but noted that the facts adduced confirm that the arrested individual was treated in accordance with departmental policy. The Commission noted that Sgt. Regis’ “choice of actions in publicly criticizing and chastising the officers who were actually engaged in gaining control of the subject, were ill-advised and embarrassing to the other officers who were doing their jobs.”

Dui’ing her testimony, Sgt. Regis claimed that the other officers got together at meetings to get their stories straight regarding this incident. However, Sgt. Regis failed to question the other officers on that issue. The Commission found the other witnesses were credible. The credibility determinations made by the Commission are not clearly contrary to the evidence and, therefore, will not be disturbed by this Court.

Inin her second assignment of error, Sgt. Regis alleges the Commission erred in upholding the discipline imposed by the NOPD as the NOPD failed to prove that her actions impaired the efficient operation of the public service. To support her argument, Sgt. Regis relies on this Court’s opinion in Fihlman v. New Orleans Police Dept., 2000-2360 (La.App. 4 Cir. 10/31/01), 797 So.2d 783. In Fihlman, the NOPD disciplined Officer Fihlman after his police vehicle collided with another police vehicle. The evidence introduced at trial consisted of the testimony of Officer Fihlman, an accident report, and the disciplinary letter. Id., p. 3, 797 So.2d at 786. The Commission granted Officer Fihlman’s appeal, and overturned the discipline imposed and this Court affirmed. This court noted the only evidence presented against Officer Fihl-man in support of impairment of the efficient operation of the public service was the conclusory statement contained in the disciplinary letter. Id., p. 9, 797 So.2d at 789. However, there was no evidence to support the allegations within the disciplinary letter. Therefore, the Commission overruled the appointing authority’s disciplinary action finding it arbitrary and capricious.

To the contrary, the Commission in the instant case heard numerous officers attest to Sgt. Regis’ actions and statements. Considering that testimony and evidence, it found that the appointing authority investigated the matter and had sufficient cause for the disciplinary action imposed. More specifically, the Commission found that Sgt. Regis’ acted unprofessionally toward a fellow officer during the lawful arrest of an individual. This conduct occurred in front of subordinate officers, as well as, the general public. Thus, the Commission found that the NOPD sufficiently proved that the complained of activity occurred and that Sgt. Regis violated the rules on professionalism and truthfulness. On the 17record, we cannot find that the Commission erred in affirming the disciplinary action against Sgt. Regis.

Accordingly, the decision of the Commission is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: CHATELAIN, Judge Pro Tempore. GREMILLION, Judge,

license: Public Domain

text:
    Sarwat GAD, M.D., et ux. v. Robert Ray GRANBERRY, et al.
    No. 09-476.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    Rehearing Denied March 24, 2010.

      William L. Melancon, Elizabeth A. Mac-murdo, Melancon & Associates, Lafayette, Louisiana, for Plaintiffs/Appellants, Melissa Gad, Sarwat Gad, M.D.
    C. Michael Fister, Jr., Joseph G. Glass, Gissel M. Ferriol, Duplass, Zwain & Bourgeois, Pfister <& Weinstock, Metairie, Louisiana, for Defendants/Appellees, Melanie Lunn, Van Eaton & Romero, Inc.
    David Joseph Krebs, Harvey Sylvanous Bartlett, III, Krystil Borrouso Lawton, Krebs, Farley & Pelleteri, New Orleans, Louisiana, for Defendant/Appellee, Dryvit Systems, Inc.
    James Leslie Hilburn, Sharon Baskin Kyle, Nancy A. Richeaux, Attorneys at Law, Baton Rouge, Louisiana, for Defendant/Appellee, Robert Ray Granberry.
    Leigh Haynie, Attorney at Law, Caren-ero, Louisiana, for Plaintiffs/Appellants, Sarwat Gad, M.D., Melissa Gad.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge Pro Tempore.

| plaintiffs appeal the trial court’s grant of summary judgment in favor of defendant real estate agent and her broker. For the following reasons, we reverse.

Facts and Procedural History

This is a redhibition action concerning a residence sold by Ray Granberry to Dr. and Ms. Sarwat Gad in May 1995. The Gads filed suit against Mr. Granberry and other defendants, which included Defendants, Melanie Lunn and Van Eaton and Romero, Inc., the real estate agent and firm that represented Mr. Granberry in the sale. The facts and procedural history of this matter are set forth in our prior opinion, Gad v. Granberry, 07-117 (La.App. 3 Cir. 5/30/07), 958 So.2d 125, writs denied, 07-1336, 07-1361 (La.9/28/07), 964 So.2d 364, 365, where we reversed the trial court’s dismissal of the Gads’ redhibition suit on exceptions of prescription filed by five defendants and remanded the matter to the trial court for further proceedings.

After remand, Defendants filed a motion for summary judgment, alleging that the Gads cannot prove Defendants are liable to them for negligent misrepresentation or fraud. The motion was supported with deposition testimonies of Ms. Lunn, Mr. Granberry, the Gads, and others and documentary evidence. Pertinent to the motion for summary judgment is Ms. Lunn’s deposition testimony in which she denied having seen any activity at the residence which indicated there were problems with it and having any conversations or discussions with Mr. Granberry about any moisture-related problems with the residence or the exterior finish which is at issue herein. After a hearing, the trial court granted the motion and dismissed the Gads’ claims against Defendants. The Gads appealed.

| ¡.Motion for Summary Judgment

Appellate courts review motions for summary judgments de novo to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Id.

While the initial burden of proof is on the mover to show that no genuine issue of material fact exists, if he will not bear the burden of proof at trial on the issue that is presented by the motion for summary judgment, he is not required “to negate all essential elements” of his opponent’s claim but need only point out that there is “an absence of factual support for one or more elements essential” to his opponent’s action. La.Code Civ.P. art. 966(C)(2). If the opponent “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

Issues Presented for Review

In their appeal, the Gads present four issues for our review: 1) is summary judgment precluded because Ms. Lunn’s knowledge of the defects or problems with the residence is an issue; 2) was the deposition testimony of Ms. Lunn submitted in support of the motion for summary judgment sufficient to carry Defendants’ burden of proof; 3) can they meet their burden of proof with regard to their fraud claim; and 4) did Ms. Lunn assume the risk that Mr. Granberry discovered/learned of the redhibitory defects between the listing and the sale of the residence?

| Discussion

In Waddles v. LaCour, 06-1245, p. 5 (La.App. 3 Cir. 2/7/07), 950 So.2d 937, 942, writs denied, 07-827, 07-882 (La.6/22/07), 959 So.2d 496, 498 (citations omitted) (quoting Osborne v. Ladner, 96-863, p. 16 (La.App. 1 Cir. 2/14/97), 691 So.2d 1245, 1257), this court discussed the duties of a real estate broker or agent:

A purchaser’s remedy against a real estate broker is limited to damages for fraud under LSA-C.C. art. 1953 et seq. or for negligent misrepresentation under LSA-C.C. art. 2315. The action for negligent misrepresentation arises ex delicto, rather than from contract. In order for a plaintiff to recover for negligent misrepresentation, there must be a legal duty on the part of the defendant to supply correct information, a breach of that duty, and damage to the plaintiff caused by the breach. A real estate broker or agent owes a specific duty to communicate accurate information to the seller and the purchaser and may be held liable for negligent misrepresentation. However, the duty to disclose any material defects extends only to those defects of which the broker or agent is aware.

Negligent Misrepresentation

The Gads’ first complaint is that the trial court erred in dismissing their claim for negligent misrepresentation. Defendants assert they are entitled to summary judgment because no evidence establishes that Ms. Lunn knew or should have known of the existence of the defects at issue herein. The Gads argue that an issue of material fact exists because Ms. Lunn’s deposition testimony does not establish that she did not have knowledge of any defects with the residence and Defendants did not submit an affidavit in which she denied such knowledge.

Ms. Lunn had a duty to relay accurate information to the Gads about the Granberry residence. Accordingly, whether she had knowledge of any defect is a material issue of fact. Ms. Lunn testified that she never saw any activity or repairs at the Granberry residence and that she never had any conversations or discussions with Mr. Granberry about the moisture-related problems with the residence or the 14exterior finish which caused and/or contributed to those moisture-related problems. Defendants assert that her testimony is sufficient to establish that the Gads do not have the evidence required to establish one criteria of their claim, i.e., she was aware of a defect.

The Gads argue that Ms. Lunn’s testimony is not a denial of knowledge and does not establish that she did not have knowledge of any repairs or activities at the residence which indicated there were defects or moisture-related problems with the residence. They claim the following circumstantial evidence defeats Defendants’ motion for summary judgment: 1) extensive repairs performed on the residence in 1995, including the replacement of a large banque of windows and a large beam in the attic, were such that it is likely Ms. Lunn learned of the repairs; 2) Ms. Lunn would not have shown the residence when such repairs were being made and probably learned of the repairs when she called to make an appointment for that purpose; 3) a maid or the Granberry children may have mentioned the repairs to Ms. Lunn; and 4) Defendants “lost” a list of potential purchasers they normally maintain for listed properties they are contracted to sell.

Defendants argue that because it took experts to determine the source of the problems with the residence and that determination required removal of exterior walls, Ms. Lunn could not have had the requisite knowledge to defeat summary judgment.

Generally, summary judgment is not appropriate if issues regarding subjective facts, such as intent or knowledge, are present. Murphy’s Lease & Welding Serv., Inc. v. Bayou Concessions Salvage, Inc., 00-978, 00-979 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, writ denied, 01-1005 (La.6/1/01), 793 So.2d 195. However, “summary | judgment may be granted on subjective intent issues when no issue of material fact exists concerning the pertinent intent.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751 (citing Simoneaux v. E.I. du Pont de Nemours & Co., Inc., 483 So.2d 908, 912 (La.1986), where the supreme court held that summary judgment is an appropriate method for disposing of a case in which intent is a critical question if conclusory statements of a plaintiff are insufficient to support a finding of intent by reasonable minds). A fact is material if it “would matter at trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.” Suire v. Lafayette City-Parish Consol. Gov’t., 04-1459, 04-1460, 04-1466, p. 11 (La.4/12/05), 907 So.2d 37, 48.

Defendants will not bear the burden of proof at trial; therefore, they are not required “to negate all essential elements” of the Gads’ claim. However, neither Ms. Lunn’s testimony nor the other evidence submitted in support of the motion for summary judgment establishes that she did not have knowledge of any repairs or activities at the residence which indicated there were defects or moisture-related problems with the residence. Furthermore, the circumstantial evidence regarding the extent of the repairs performed by Mr. Granberry may be such that a jury would determine the required repairs indicated the residence had a defect, regardless of its souree, and that Ms. Lunn learned of the extensive repairs from someone other than Mr. Granberry. Accordingly, summary judgment is inappropriate.

Fraud

The Gads next urge that the trial court erred in dismissing their claim for fraud. Fraud is defined as “a misrepresentation or a suppression of the truth made with the | ¿intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” La.Civ. Code art. 1953. Silence and inaction are also elements of fraud. Id.

If Ms. Lunn knew of problems with the residence and she did not tell the Gads, she created an unjust advantage for herself, Van Eaton, and Mr. Granberry and caused a loss to the Gads. Her knowledge, or lack thereof, is subjective and, under the circumstances present here, not appropriate for summary judgment.

Assumption of the Risk

The Gads’ last argument is that the trial court erred in granting summary judgment because Ms. Lunn assumed the risk that the disclosure sheet prepared by Mr. Granberry in 1991 was inaccurate when she refused Ms. Gad’s request prior to closing in 1995 to have it updated by Mr. Granberry. Defendants argue that Ms. Lunn’s duty to the Gads was that she disclose only defects of which she had knowledge, citing jurisprudence which holds that a purchaser’s claims against real estate agents are for fraud and negligent misrepresentation.

The legal premise stated above is correct; however, it may not be the only remedy available to the Gads. There is no legal duty to provide purchasers with a disclosure form like the one Ms. Lunn had Mr. Granberry complete. Waddles, 950 So.2d 937. However, if Defendants undertook a duty to provide the disclosure form to the Gads, they were obligated “to perform the task in a reasonable and prudent manner.” Schulker v. Roberson, 91-1228, p. 5 (La.App. 3 Cir. 6/5/96), 676 So.2d 684, 688 (quoting Crane v. Exxon Corp., U.S.A., 613 So.2d 214, 221 (La.App. 1 Cir.1992)). Whether they assumed a duty by providing the disclosure form to the Gads |7is a question of fact to be determined by the trier of fact. Bujol v. Entergy Serv., Inc., 03-492, 03-502 (La.5/25/04), 922 So.2d 1113.

The only evidence on this issue is the testimonies of Ms. Gad and Ms. Lunn. Ms. Gad testified that prior to closing in 1995, Ms. Lunn presented her with the disclosure sheet which had been completed by Mr. Granberry in 1991, that she requested it be updated, but Ms. Lunn refused to comply with the request. Ms. Lunn testified that Ms. Gad did not ask her to have Mr. Granberry update the disclosure form. This evidence does not establish that Defendants are entitled to summary judgment on this issue.

Disposition

Genuine issues of material fact exist with regard to the Gads’ claims against Ms. Lunn and Van Eaton and Romero, Inc. Accordingly, the trial court’s judgment is reversed, and the matter is remanded for further proceedings. All costs are assessed to Defendants.

REVERSED AND REMANDED.

GREMILLION, J., dissents and assigns written reasons,

THIBODEAUX, Chief Judge, dissents for the reasons expressed by Judge GREMILLION.

GREMILLION, Judge,

dissenting.

| ,The appellants purchased this home in 1995, with Lunn acting as the realtor. In 2001, the appellants discovered moisture damage to the home resulting from defective simulated stucco, and undertook repairs. They filed suit in 2002. Appellants press their claims against Lunn on two fronts.

First, appellants argue that the seller had undertaken extensive repairs of this type of damage before the sale. They claim these repairs were undertaken after Lunn was hired as a listing agent.

Second, appellants submit that prior to the sale, Lunn presented a 1991 disclosure form signed by the seller. Appellants say they requested an updated form, and Lunn indicated that since no changes had been made to the property, no update was required.

However, neither the form nor the repairs are important. What is of critical importance is that there is no evidence that the agent knew the damage existed. The fact that it took six years and four experts for the appellants to find this damage in their own home clearly suggests that the damage was quite hidden.

The majority asserts that there is an issue of fact regarding whether the appellants asked the seller in 1995 to update a 1991 disclosure form. However, this only suggests a genuine issue as to that form. It does not suggest a genuine issue as to the alleged damage, which remained hidden for another six years.

Appellants contend that repairs were made to the home in 1995. The majority | incites four pieces of circumstantial evidence regarding these repairs that they find preponderates against the motion for summary judgment. I submit that none of the circumstantial evidence is sufficient to create a material issue of fact regarding Lunn’s knowledge of the alleged repairs, much less Lunn’s knowledge of the damage. In my opinion, the “evidence” is pure conjecture and serves to support the fact that appellants will be unable to meet their burden at trial regarding Lunn’s knowledge.

The trial court was not concerned with whether there was a factual dispute as to a 1991 disclosure form, nor with whether there was a factual dispute as to Lunn’s knowledge of the 1995 repairs. Rather, the trial court was properly concerned only with whether there was a factual dispute as to Lunn’s knowledge of some very well-hidden damage that was not discovered until 2001, six years after the appellants bought and occupied this home. The trial court found that there was no evidence establishing that Lunn knew of the damages. I agree, and thus would affirm the trial court.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.


author: EZELL, Judge.

text:
    Larry BURNS v. INTERSTATE BRANDS CORPORATION.
    No. WCA 09-705.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      James Felix Scott, III, Guillory, Scott & Associates, Metairie, LA, for Defendant/Appellant Interstate Brands Corporation.
    Maria Anna Losavio, Losavio Law Firm, Alexandria, LA, for Plaintiff/Appellee Larry Burns.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

11 Interstate Brands Corporation appeals a judgment from the Office of Workers’ Compensation alleging the workers’ compensation judge erred in the awards of certain penalties and the assessment of court costs. The claimant, Larry Burns, answered the appeal claiming the workers’ compensation judge erred in failing to find that he is permanently disabled and in finding that vocational rehabilitation was not raised as an issue at trial. He also claims the trial court erred in failing to award legal interest and asks for additional attorney fees.

FACTS

Larry Burns injured his back in May 1996, while loading bread when he was employed by Holsum Bakery, an Interstate Brands Corporation company. A 1998 judgment ruled that Mr. Burns was entitled to temporary total disability (TTD) benefits and all reasonable and necessary medical expenses.

On January 26, 2000, Dr. Louis Blanda, Mr. Burns’ treating orthopedic surgeon, performed a three-level discectomy and decompression at L3-4, L4-5, and L5-S1. The surgery was necessitated by the work injury. Immediately after surgery, Mr. Burns complained of numbness in his left arm and hand with neck pain. Dr. Blanda suspected that Mr. Burns may have carpal tunnel syndrome which could have been caused by IV fluids creating swelling in the wrist and pinching a nerve. He explained that it might be a double crush syndrome in which you have lesions in two parts of the body which give you symptoms in the same part of the body. In this case, it was pinched nerve in the neck from the previous injury and a pinched nerve in the wrist.

On August 24, 2004, Mr. Burns filed a disputed claim for compensation claiming that recommended bilateral facet injections for cervical and upper extremity |2pain had not been authorized. Thereafter, Mr. Burns amended his claim several times to add additional claims.

On May 18, 2006, Interstate Brands also filed a disputed claim for compensation claiming that Mr. Burns was no longer entitled to indemnity benefits because he had been released to return to work. Interstate Brands further claimed that it had paid more than the 520 weeks of maximum supplemental earnings benefits (SEB) payable under law.

A trial was held on November 18, 2008. The workers’ compensation judge (WCJ) made several rulings following the trial. He first determined that any cervical problem that Mr. Burns was having was neither related to the 1996 accident nor the 2000 surgery. The WCJ found that there was a showing of symptoms early on in the left wrist of carpal tunnel syndrome, that the problems were associated with the 2000 surgery, and that the employer failed in its investigation of this matter. The WCJ awarded a $2,000 penalty.

The WCJ also found that Interstate Brands established that Mr. Burns was at maximum medical improvement. The WCJ concluded that Mr. Burns failed in proving that he could not perform any type of work, so the employer was entitled to convert TTD benefits to SEB. The WCJ further found that Mr. Burns had received in excess of 520 weeks of SEB and he was no longer entitled to any type of benefits.

The WCJ also determined that Mr. Burns made a demand for Viagra at least by the filing of the fourth amended petition. There was no evidence the employer had ever explored the relationship of the erectile dysfunction to the work injury. A $2,000 penalty was awarded.

A $2,000 penalty was also awarded for the failure of Interstate Brands to pay the bill of Dr. Joseph Gillespie, a pain management specialist. An additional $2,000 |spenalty was awarded for failure to pay the proper rate for medical mileage reimbursement.

The WCJ finally held that Mr. Burns never raised the issue of failure to provide vocational rehabilitation. The WCJ further found that, regardless, Mr. Burns would not have been entitled to a penalty because the law does not allow a penalty for failure to provide vocational rehabilitation. An attorney fee in the amount of $4,500 was awarded to Mr. Burns.

Interstate Brands appealed the judgment. It argues that the WCJ erred in assessing penalties for failure to authorize treatment for Mr. Burns’ left-hand pain and for failing to authorize Viagra. It also claims that the trial court abused its discretion in assessing all costs to it.

Mr. Burns answered the appeal. Mr. Burns asserts that the WCJ erred in failing to find that he is permanently and totally disabled. He claims that the WCJ erred in finding that the issue of vocational rehabilitation was not raised at trial and in not ordering proper vocational rehabilitation and penalties and attorney fees. He also claims that the WCJ erred in failing to award legal interest. Mr. Burns also requests an increase in attorney fees.

DISABILITY

Mr. Burns admits that he is no longer temporarily and totally disabled but claims that he is now permanently and totally disabled. Mr. Burns suggests that not only does he have physical and psychological issues that impede his ability to return to work, he is also restricted by his educational limitations. He points out that he has had two back surgeries and remains in constant pain. His lumbar spine injury has affected his left leg and caused radiculopathy. He has also experienced sleep disturbance, bladder urgency, and sexual dysfunction problems. Since the second ^surgery, his left arm and hand have been affected.

A WCJ’s finding regarding a claimant’s disability is a factual finding that is entitled to great weight and should only be overturned when there is manifest error. Winford v. Conerly Corp., 04-1278 (La.3/11/05), 897 So.2d 560; Vermilion Parish Police Jury v. Williams, 02-12 (La.App. 3 Cir. 7/3/02), 824 So.2d 466.

In order to prove entitlement to temporary total disability benefits or to permanent total disability benefits, a claimant must demonstrate by clear and convincing evidence that he is physically unable to engage in any employment, including working while in any pain. La. R.S. 23:1221(l)(c) and (2)(c). Disability is a question of fact. Jones v. Universal Fabricators, 99-1370 (La.App. 3 Cir. 2/9/00), 758 So.2d 856, writ denied, 00-742 (La.5/12/00), 762 So.2d 13

Gibson v. Shaw Global Energy Servs., 04-547, p. 6 (La.App. 3 Cir. 10/27/04), 885 So.2d 707, 712, writ denied, 04-2920 (La.2/4/05), 893 So.2d 876.

The evidence indicates that Mr. Burns had functional capacity evaluations (FCE) in 2002 and 2005. Both evaluations indicated that Mr. Burns could perform medium-duty work.

In his deposition of October 5, 2007, Dr. Blanda indicated that he had seen Mr. Burns on three occasions since the last deposition on July 14, 2006. In both depositions, Dr. Blanda testified that Mr. Burns was at maximum medical improvement and that he could return to work at medium duty with the restrictions set forth by the FCEs. Dr. Blanda also opined that the pain Mr. Burns was experiencing in his left arm and hand did not limit him from working. Dr. Blanda explained that Mr. Burns is better since the surgery but he is still going to have back pain and his back will never be normal. He continued to express his opinion that medium-duty work was appropriate for Mr. Burns.

At Dr. Blanda’s referral, Mr. Burns started seeing Dr. Gillespie for pain management in 2002. Dr. Gillespie treated Mr. Burns with cervical epidural | .^injections, SI joint injections, and oral medication. In a letter dated September 16, 2004, to Broadspire, the insurer’s case manager, Dr. Gillespie noted that Mr. Burns was at maximum medical improvement as of January 2004 and was placed on light to sedentary duty. Dr. Gillespie also thought that Mr. Burns was a good candidate for a conditioning program which should be followed by an FCE. In March 2005, Dr. Gillespie performed an SI joint injection on Mr. Burns. He reviewed the FCE and limited Mr. Burns to medium-duty activities.

Mr. Burns attended a conditioning program at Miller Physical Therapy under the direction of Mr. Wilvan Miller, a licensed physical therapist. During the course of the program, Mr. Miller noted that Mr. Burns had increasing strength and flexibility. For about a month, Mr. Burns did tolerate all exercises well with mild complaints of pain and aches. After about a month, Mr. Burns did not attend the sessions on a frequent basis. Mr. Burns explained that the exercises started aggravating him after a while. Mr. Miller stated that Mr. Burns’ body was very decondi-tioned when he started the program. Mr. Miller did not think that Mr. Burns could have performed medium or light-duty work but did agree that he could perform sedentary work. During his testimony, Mr. Burns even admitted he could perform a job in which he could alternate between standing and sitting.

Dr. Michael Berard is a psychologist who has been treating Mr. Burns since 2007 for depression. Dr. Berard testified that Mr. Burns could not resume full-time employment when he initially began seeing him. However, Dr. Berard further stated that Mr. Burns’ mental status subsequent to treatment does not prohibit him from working.

The evidence is clear that Mr. Burns is capable of working. Consequently, he was entitled to SEB and has exhausted his right to those benefits. La. R.S. |,;23:1221(3)(d).

VOCATIONAL REHABILITATION

Mr. Burns argues that the trial court erred in finding that vocational rehabilitation was not raised at trial. Mr. Burns claims that the issue was raised at trial without objection by the defense attorney, and therefore, the pleadings were expanded to include this issue.

Louisiana Code of Civil Procedure article 1154 provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended. LSA-C.C.P. art. 1154. However, according to the editor’s notes to Article 1154, this sentence does not contemplate the adding of an issue not pleaded, but rather allows the pleading of material facts for an issue pleaded only generally or as a legal conclusion. A timely objection to an attempt to enlarge the pleadings, coupled with the failure to move for an amendment to the pleadings, is fatal to an issue not raised by the pleadings. Barker v. Loxco, Inc., 432 So.2d 975 (La.App. 1st Cir.1983); Gar Real Estate & Ins. Agency v. Mitchell, 380 So.2d 108, 109 (La.App. 1st Cir.1979).
For introduction of evidence to automatically enlarge the pleadings under Article 1154, the evidence admitted must not be pertinent to any other issue raised by the pleadings. If the evidence was admissible for any other purpose, it cannot enlarge the pleadings without the express consent of the opposing party. Bourque v. Koury, 95-286 (La.App. 3rd Cir.11/2/95), 664 So.2d 553, 555; Snearl v. Mercer, 99-1738 (La.App. 1st Cir.2/16/01), 780 So.2d 563, 572, writs denied, 01-1319 & 01-1320 (La.6/22/01), 794 So.2d 800 & 794 So.2d 801. When a particular claim has not been alleged, even if evidence supporting that claim is admitted without objection, if that evidence has relevance to another issue, it cannot be said to have enlarged the pleadings to allow the court to rule on such a claim. See Harris v. Cola, 98-0175 (La.App. 1st Cir.5/14/99), 732 So.2d 822, 825; Boudreaux v. Terrebonne Parish Police Jury, 477 So.2d 1235 (La.App. 1st Cir.1985), writ denied, 481 So.2d 133 (La.1986).

Barham & Arceneaux v. Kozak, 02-2325, pp. 16-17 (La.App. 1 Cir. 3/12/04), 874 So.2d 228, 241-42, writ denied, 04-930 (La.6/4/04), 876 So.2d 87 (emphasis in original).

|vNeither the initial claim form nor any amending petitions filed by Mr. Burns requested vocational rehabilitation or pled the failure of the employer to provide vocational rehabilitation. The only mention at the hearing itself was a question to Mr. Burns about whether a vocation rehabilitation counselor had ever provided him with a list of jobs. While there may be some mention in the medical records of possible vocational rehabilitation, these records were introduced regarding Mr. Burns’ disability status.

No direct evidence or testimony on the issue of vocational rehabilitation was offered. Although an employee is entitled to vocational rehabilitation when he cannot earn wages equal to what he earned before the accident pursuant to La. R.S. 23:1226, there is no indication that Mr. Burns ever requested vocational rehabilitation. The issue was not raised until a post-trial brief was filed on Mr. Burns’ behalf. The WCJ was correct in his ruling that the issue of vocational rehabilitation was not pled and should not be considered at this time.

PENALTIES

Interstate Brands contests the award of penalties for both the failure to authorize treatment for the left-hand pain and the failure to authorize payment of the Viagra prescription.

The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41. This court, in Johnson v. Transamerica Waste Co., 99-190, pp. 9-10 (La.App. 3 Cir. 6/2/99), 741 So.2d 764, 770, stated the following:

In order to avoid the imposition of penalties, an employer must reasonably controvert the workers’ compensation claimant’s right to benefits. La. R.S. 23:1201(F). The test to determine if the employer has fulfilled its duty is whether the employer or his insurer had sufficient | ¡¿actual and medical information to reasonably counter the factual and medical information presented by the claimant. Brown v. Texas-La. Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885; Thibodeaux v. L.S. Womack, Inc., 94-1375 (La.App. 3 Cir. 4/5/95), 653 So.2d 123.

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 subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181.

Left-Hand Pain

Interstate Brands alleges that it reasonably controverted Mr. Burns’ claim for benefits for his left-hand pain because there are two different physicians who did not relate his symptoms of hand pain to the original accident.

The WCJ recognized these two doctors’ opinions but stated that there was nothing in the records to indicate why they came to that conclusion. The WCJ noted that the employer never brought any information to these doctors that indicated that Dr. Blanda thought it could be a complication associated with the insertion of the IV. The WCJ observed that the expert orthopedic surgeon he appointed to examine Mr. Burns, Dr. Karl Bilderback, testified that anything that causes swelling can cause carpal tunnel syndrome.

It must also be recognized that the record is clear that Mr. Burns awoke from the 2000 surgery complaining of numbness in his left arm and hand. This was not a symptom that he had experienced before the surgery. As of the trial, he continued to have pain and discomfort in his left hand. We find no error in the WCJ’s decision to award a $2,000 penalty for failure to properly investigate Mr. Burns’ claim that the surgery caused his left arm and hand problems.

|9Viaffm

Interstate Brands argues that the trial court erred in assessing it with penalties for failure to authorize payment of a Viagra prescription prescribed by Dr. Blanda. Interstate Brands claims that there is no evidence that the claims for Viagra were presented to it for approval.

We have reviewed the record and agree with the WCJ that Dr. Blanda discussed the possibility that Mr. Burns’ erectile dysfunction problem was associated with the surgery. Dr. Blanda’s records also indicate that a request for Viagra, among other prescriptions, was sent to Juanita Mix-ion at Broadspire on June 22, 2005. The records also include a letter dated July 10, 2001, from an attorney who represented Mr. Burns previously. The letter was written to Dr. Blanda indicating that the employer was refusing to approve the Viagra prescription. There was sufficient evidence in the record for the WCJ to determine that the employer knew about the need for Viagra and its relation to the injury. We find no error in the WCJ’s award of a $2,000 penalty for failure to approve the Viagra prescription.

COSTS

Interstate Brands claims that the WCJ erred in assessing it with all the costs. It claims that costs were assessed against it for issues raised by Mr. Burns on which he did not prevail.

Pursuant to La.Code Civ.P. art. 1920 the trial court may render judgment for costs against any party as it may consider equitable. A trial court’s assessment of costs may be reversed by an appellate court only upon a showing of an abuse of discretion. Lambert v. Brookshire Grocery Co., 06-1001 (La.App. 3 Cir. 12/20/06), 945 So.2d 918.

| ,nTaking into consideration that Mr. Burns prevailed on a number of his claims, we find no abuse of discretion in the WCJ’s assessment of all costs against Interstate Brands.

LEGAL INTEREST

Mr. Burns claims that the trial court erred in failing to award legal interest. He notes that the judgment is silent as to legal interest, so it is considered rejected by the trial court.

“It has long been the rule that interest cannot be recovered on a judgment which is silent as to interest.” Smith v. Quarles Drilling Co., 04-179, p. 7 (La.10/29/4), 885 So.2d 562, 567. “An exception exists when interest is provided by statute.” Id. Louisiana Revised Statutes 23:1201.3(A) does provide that an award for compensation carnes with it an award for interest due from the date of each installment. However, La. R.S. 23:1201.3 “does not govern the calculation of interest on penalties and attorney fees in a workers’ compensation judgment” because it is not considered compensation. Smith, 885 So.2d at 567. In order to receive interest on penalties and attorney fees, a party must pray for interest in his pleadings. Id.; Olivier v. Olivier Builders, 09-208 (La.App. 3 Cir. 9/9/09), 19 So.3d 573.

Mr. Burns’ first supplemental and amending petition did specifically request legal interest on court costs, penalties, and attorney fees. Therefore, we award him legal interest on the judgment.

ATTORNEY FEES

Mr. Burns has asked for an increase in the attorney fees awarded in the trial court and also asks for additional attorney fees for the work performed in preparation of the appeal. The trial court awarded attorney fees in the amount of $4,500.

|nAn award of attorney fees is within the discretion of the WCJ as long as it is supported by the record. Glaze v. Wal- Mart Stores, Inc., 05-72 (La.App. 3 Cir. 6/1/05), 904 So.2d 944. A number of factors are used in determining the amount of attorney fees to be awarded which include the degree of skill and ability exercised, the amount of the claim, the amount recovered, and the amount of time devoted to the case. Id.

Although numerous depositions were taken and pleadings filed during the four-year pendency of these disputed claims by the parties, we cannot say the WCJ abused its discretion in the award of attorney fees.

We do find that Mr. Burns is entitled to an additional amount of attorney fees for work necessitated by successfully defending Interstate Brands’ appeal. We also find that while Mr. Burns was not successful on some of his issues raised by his answer to the appeal, he was successful on his claim for legal interest. We award an additional $3,500 in attorney fees for the work performed on appeal.

For the reasons stated, the judgment of the Office of Workers’ Compensation is amended to include an award for legal interest. The judgment is also amended to include an award of $3,500 in additional attorney fees for the work necessitated by this appeal. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against Interstate Brands Corporation.

AFFIRMED AS AMENDED.


author: DECUIR, Judge.

text:
    LAFAYETTE PARISH SCHOOL BOARD v. RATCLIFF CONSTRUCTION CO., et al.
    No. 09-762.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    Rehearing Denied March 24, 2010.

      Ronald J. Fiorenza, Provosty, Sadler, DeLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendant/Appellee, Ratcliff Construction Company.
    Paul J. McMahon, III, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Lafayette Parish School Board.
    Emile Joseph, Jr., Robert A. Robertson, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Corne-Lemaire Group, An Architectural Corporation.
    David Perry Salley, Michael W. Rutledge, Salley, Hite, Rivera & Mercer, New Orleans, LA, for Defendant/Appellee, Beaullieu & Associates, Inc.
    Jonathan C. Augustine, L.C., The Augustine Law Firm, APLC, Baton Rouge, LA, for Other, City of Alexandria.
    Eugene J. Radcliff, Montgomery, Barnett, Brown, Read, Hammond & Mintz, LLP, Baton Rouge, LA, for Other, City of Alexandria.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and DAVID E. CHATELAIN,* Judges.
   DECUIR, Judge.

hln 2008, the Lafayette Parish School Board filed suit against Corne-Lemaire Group, an Architectural Corporation, which designed and supervised the construction of N.P. Moss Middle School in the late 1990s. The trial court granted Corne-Lemaire’s exception of peremption and dismissed the suit with prejudice. The School Board now appeals, and joining the School Board as amicus curiae is the City of Alexandria. For the following reasons, we affirm.

This case arises from water damage discovered at N.P. Moss Middle School in the summer of 2007, eight years after the school was constructed. A contract was entered into on October 13, 1997 by the School Board and Corne-Lemaire whereby Corne-Lemaire furnished architectural drawings, plans, and specifications for the construction of a new school and provided administrative and supervisory services during the construction of the school. The Ratcliff Construction Company, Inc. was hired as the general contractor in June 1998, and construction began immediately thereafter. On July 29, 1999, a Certifícate of Substantial Completion was filed and the School Board accepted the work performed.

On July 24, 2008, after investigation had begun as to the cause of the water intrusion, the School Board filed suit against Ratcliff and Corne-Lemaire. Ratcliff responded by filing a peremptory exception of prescription, which the trial court granted based on the five-year peremptive period found in La. R.S. 38:2189. Thereafter, Corne-Lemaire filed its own Peremptory Exceptions of Peremption and No Cause of Action, urging the court to find the School Board’s suit perempted by the language of La. R.S. 9:5607, enacted in 2003, which provides in part:

A. No action for damages against any professional engineer, surveyor, engineer intern, surveyor intern, or licensee as defined in R.S. 37:682, or any professional architect, landscape architect, architect intern, or agent as defined in R.S. 37:141, or professional interior ^designer, or licensee as defined in R.S. 37:3171, or other similar licensee licensed under the laws of this state, or real estate developer relative to development plans which have been certified by a professional engineer or professional architect, whether based upon tort, or breach of contract, or otherwise arising out of an engagement to provide any manner of movable or immovable planning, construction, design, or building, which may include but is not limited to consultation, planning, designs, drawings, specifications, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought unless filed in a court of competent jurisdiction and proper venue at the latest within five years from:
(1) The date of registry in the mortgage office of acceptance of the work by owner; or
C. The five-year period of limitation provided for in Subsection A of this Section is a peremptive period within the meaning of Civil Code Article 3458 and in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
D. The provisions of this Section shall take precedence over and supersede the provisions of R.S. 9:2772 and Civil Code Articles 2762 and 3545.

In opposition to the exception of per-emption, the School Board argued that La. R.S. 9:5607 was not applicable, contending its right to pursue its claim against Corne-Lemaire vested prior to the 2003 enactment of the statute. The School Board specifically argued that its rights vested at the time the parties entered into the contract on October 13,1997, and that since La. R.S. 9:5607 was enacted after the contract date, it could not be applied retroae-tively to divest the School Board of its vested rights. The trial court ruled against the School Board, maintained the exception, and dismissed the suit against Corne-Lemaire. At the hearing, the trial court probed the question of when the School Board’s rights vested and pointed out that governing jurisprudence holds that the right to pursue a cause of action arises at the time the damage becomes known.

| Jn this appeal, the School Board contends the trial court erred in failing to apply the provisions of La. R.S. 9:2772, as it existed in 1997 when the contract between the School Board and Corne-Le-maire was executed. At that time, Section 2772 provided for a ten-year prescriptive period for claims such as those asserted herein. The School Board also argues the trial court erred in relying on a subsequently enacted statute that served to retroactively divest the School Board of its right to bring this cause of action. Both of the School Board’s arguments require this court to find that its rights vested in 1997 when it entered into a contractual relationship with Corne-Lemaire.

As an appellate court, we review peremptory exceptions by studying the entire record “to determine whether the trial court was manifestly erroneous with its factual conclusions.” Roadhouse Bar-B-Que, Inc. v. Certain Underwriters at Lloyds, 04-1697, p. 5 (La.App. 3 Cir. 5/4/05), 909 So.2d 619, 623, quoting Parker v. Buteau, 99-519, p. 3 (La.App. 3 Cir. 10/13/99), 746 So.2d 127, 129. In this case, the School Board and Corne-Lemaire were in a contractual relationship which ended in 1999, when the school construction project was accepted. Damage appeared in the school building eight years later in 2007. Suit was filed in 2008. The question before us is twofold: when did the School Board acquire the right to sue Corne-Lemaire and whether, by operation of law, that right was perempted by the passage of time.

We find no merit to the position advocated by the School Board. Applying well-established jurisprudence to an analysis of this case, we find the School Board did not acquire the right to sue Corne-Lemaire until it discovered damage to N.P. Moss Middle School in 2007. By that time, the governing peremptive statute was La. R.S. 9:5607, which provides for a five-year period from acceptance of the work to file a claim against an architect. As more than five years passed after Corne-jLemaire,s4 work was accepted by the School Board, the suit brought in 2008 was untimely.

As explained by the fourth circuit in Patriot American Hospitality Partnership, LP v. Mississippi Land Holdings, Inc., 06-0601, p. 6 (La.App. 4 Cir. 12/13/06), 948 So.2d 249, 252, writ denied, 07-0080 (La.3/9/07), 949 So.2d 450:

“Under Louisiana law, a cause of action accrues when a party has the right to sue.” Landry v. Avondale Indus., Inc., 03-0719, 03-0993, 03-1002, p. 4, (La.12/3/03), 864 So.2d 117, 122, quoting Bourgeois v. A.P. Green Indus., Inc., 00-1528, p. 9 (La.4/3/01), 783 So.2d 1251, 1259. Fault, causation, and damages are required for a cause of action to exist. Owens v. Martin, 449 So.2d 448, 450-51 (La.1984).

The Patriot court concluded that the plaintiff did not acquire the right to sue the engineering and architectural firms involved in a 1996 renovation until it discovered the termite damage at issue in 2003. By that time, La. R.S. 9:5607 was the applicable statute.

Likewise, in Lee v. Professional Construction Services, Inc., 07-865, p. 9 (La.App. 5 Cir. 3/11/08), 982 So.2d 837, 842, writ denied, 08-0782 (La.6/6/08), 983 So.2d 919, a case involving engineering work in 1996 and damage in 2005 during Hurricane Katrina, the fifth circuit relied on Patriot and held, “we find that the plaintiffs did not acquire the right to sue until they discovered the damage in 2005. Thus, their rights had not vested before the 2003 enactment of R.S. 9:5607.”

Finally, in Ebinger v. Venus Construction Corp., 08-379 (La.App. 3 Cir. 10/1/08), 995 So.2d 1224, this court followed Patriot and Lee and found a party’s right to indemnification, asserted nine years after certain engineering work was performed, was perempted by La. R.S. 9:5607. In all three cases, the courts rejected the argument that there existed a vested, pre-ex-isting right which is protected from the retroactive application of the peremption statute.

| r,For the above and foregoing reasons, the judgment of the trial court is affirmed. We deny Corne-Lemaire’s motion to strike the amicus curiae brief of the City of Alexandria, although we find no merit to the position advocated therein. Costs of the appeal in the amount of $1,161.69 are assessed to the Lafayette Parish School Board.

AFFIRMED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.


author: PIERCE, Justice,

text:
    J. K. v. R. K.
    No. 2008-CA-01026-SCT.
    Supreme Court of Mississippi.
    Aug. 13, 2009.
    Rehearing Denied Oct. 22, 2009.

      John Benton Clark, Thomas Ray Julian, Jackson, attorneys for appellant.
    Thomas W. Crockett, Jackson, Carlton W. Reeves, attorneys for appellee.
   PIERCE, Justice,

for the Court.

¶ 1. This case presents the second appeal to this Court in the domestic-relations dispute between R.K. and J.K. on an issue regarding a portion of the property settlement agreement incorporated in the divorce decree granted on August 29, 2002. In R.K. v. J.K., 946 So.2d 764 (Miss.2007), this Court reversed and remanded in part, with instructions, the chancery court’s decision denying R.K.’s request for relief provided by Rule 60(b) of the Mississippi Rules of Civil Procedure. On May 20, 2008, the chancery court granted R.K. that relief from the court’s previous judgment on the basis of double recovery and entered a final judgment in accordance with this Court’s ruling.

¶ 2. J.K. timely appeals, assigning as error the chancery court’s decision granting R.K. relief under Rule 60(b). Upon further consideration, having reviewed the full and complete record now before this Court, we find clear error in our previous ruling, thus requiring the reversal of the chancery court’s May 20 final judgment.

FACTS

¶ 3. The pertinent facts were stated in R.K. v. J.K., 946 So.2d 764 (Miss.2007), this Court’s first opinion in this case.

¶ 4. R.K. and J.K. married in 1976. They had two children, L.K. and B.K., and the family resided in Hinds County, Mississippi, until 2001, when the couple separated and R.K. subsequently filed for a divorce. J.K. planted a recording device in R.IL’s car, which recorded R.K. talking at various times with other health professionals concerning patients and with lawyers regarding his personal legal matters as well as the matters of others in which he served as a medical expert. Upon learning of these recordings, R.K. filed a Motion for Injunctive and Other Relief and subsequently a Motion to Quash, both in May 2002, to prevent J.K. from ever using or divulging the information on the tapes. Later that May, the trial court granted in part R.K’s motion for injunctive relief, instituting a preliminary injunction enjoining J.K. from admitting as evidence any of the recorded communications protected by the doctor-patient privilege. While the court did not quash the recorded communications, the court enjoined J.K. from using any of the recordings until the court could determine whether the communications should be quashed pursuant to 18 U.S.C. § 2511(l)(b)(I). R.K. filed a motion to reconsider, which the court denied. The parties agreed on their own terms as to the regulation of the information on the tapes in the divorce settlement agreement.

¶ 5. The court issued a final judgment of divorce on August 29, 2002, on the ground of irreconcilable differences, including the parties’ agreement for property settlement and child support.

¶ 6. Section 11 of the agreement, titled “Installment Payments,” provided in the first paragraph that R.K. would pay J.K. periodic alimony for four months, commencing as monthly payments of $5,000 on September 1, 2002, and thereafter, a lump-sum property distribution in monthly payments of $5,000, commencing on January I, 2003, for fifty-six months, totaling $280,000. The second paragraph of section 11 allowed R.K. to “deduct one half of his cost of defending, settling, or discharging claims arising from his actions which took place prior to the date of the divorce.” One of the three types of claims to which this deduction privilege applied was for “any litigation that may arise as a result of J.K.’s instigation, encouragement, or in which J.K. provides assistance, directly or indirectly.”

¶ 7. Section 19 of the agreement, titled “Additional Covenants,” required, inter alia, that J.K.:

(2) will return to [R.K.] all tapes, photos, and any other evidence or material she has in her possession concerning [R.K.j’s or any of his associates’ conduct, and all copies, transcripts thereof or other reproductions thereof, (3) will keep confidential and not divulge to anyone any of the content or evidence derived from the use of the materials listed in clause (2), and promptly advise him of any accidental disclosure, (4) agrees not to pursue any litigation, civil or criminal relative to his relationship with other women, and in general will refrain from making any comments to anyone concerning [R.K’s] alleged marital misconduct, except in counseling which is confidential.

¶ 8. Later in the same paragraph, J.K. and R.K. additionally agreed to the following:

J.K. warrants that she will not divulge the contents of the tapes to anyone.... If Defendant breaches this Agreement in regards to the tapes, she will pay in liquidated damages the greater of (1) all amounts remaining due hereunder, or (2) One Hundred Thousand Dollars ($ 100,000).

¶ 9. On December 17, 2002, C.G., longtime friend and legal counsel to R.K., filed suit [in federal court] against J.K. for wiretapping fraud, alleging that her recordings included his conversations with R.K. On December 12, 2003, J.K. filed a Petition to Re-Open and Modify Divorce Settlement and Court Order for a Limited Purpose in chancery court, requesting that the court modify the Agreement in such a manner as to allow her to defend herself. R.K. filed a Motion to Dismiss, Answer to Petition and Counter-claim for Contempt and Specific Performance on March 12, 2004. The counterclaim requested that the court find J.K. in contempt, inter alia, for violating section 19 by disclosing the contents of the tapes, and consequently, that the court order specific performance of the liquidated damages provision in section 11, which would require J.K. to forfeit the remaining $ 215,000 due of the property distribution lump sum. R.K. offered no evidence of his actual damages. The chancery court denied J.K’s motion on March 31, 2004, finding that the tapes certainly were discoverable but leaving the determination as to whether J.K. could disclose the contents to the federal district court, which was in the best position to decide what information was necessary for disclosure in the wiretapping suit. The court did not address R.K’s counterclaim for breach of contract at that time.

¶ 10. J.K. counterclaimed in federal court against C.G. on April 2, 2004, for conspiracy, abuse of process, and conversion, and R.K. intervened in the suit on April 12, 2004, consequently making him subject to J.K’s counterclaim as well. On July 7, 2004, J.K. filed in the federal district court a Motion for Partial Summary Judgment as to the admissibility of certain tapes, treated by the court as a Motion in Limine. J.K. asked the court to rule that the Agreement could not be used to prevent her from defending herself in the wiretapping suit. On September 14, 2004, the federal district court granted J.K’s motion.

¶ 11. J.K. was the only person who the court was certain knew the content of the tapes, thus her testimony was crucial in defense to the wiretapping suit. Since the wiretapping suit was based upon the content of the tapes, it was necessary for J.K’s defense that she be able to discuss the information on the tapes. Thus, the court granted J.K’s motion, holding that, solely within the context of that trial, J.K. could discuss the tapes in order to defend herself in the wiretapping suit. The court would address matters concerning eviden-tiary privileges as the need arose. The court did not decide whether J.K.’s arguments could be construed as “uses” or “disclosures” in violation of the Agreement and left that issue to be decided by the chancery court. On February 17, 2005, the jury found that J.K. had proven two of her claims, conversion and abuse of process. The jury also found that she had suffered actual damages as a result of R.K.’s actions and consequently awarded her $242,000.

¶ 12. R.K.’s attorney wrote J.K. a letter in May 2004, stating that he had advised R.K. to discontinue monthly property-distribution payments in order to recoup his legal fees pursuant to Section 11 of the Agreement. On May 21, 2004, J.K. filed a Motion for Contempt and for Specific Performance of Property Settlement Agreement, requesting that R.K. be found in contempt for ceasing monthly property-distribution payments and that he be required to provide specific performance of his duty per the Agreement to pay arrears and continue payments.

¶ 13. On November 15, 2004, the chancery court responded to J.K.’s motion for contempt and specific performance and R.K.’s counterclaim for breach of contract. The court found R.K. in contempt for willfully and intentionally violating the Agreement by failing to make the $5,000 monthly payments. The court did not enforce the liquidated-damages provision in section 19. She enforced the provision as a termination clause, finding “[J.K.] did not commit a material breach,” as any disclosure was for a limited purpose among parties who already were aware of the content; and that, because of the necessity of participating in her own defense, her breach was not willful and thus not contemptuous. The court was thus unconvinced by R.K.’s argument that he had withheld the payments because J.K. had violated sections 11 and 19 of the Agreement by divulging the contents of certain tapes and making comments concerning R.K’s alleged marital misconduct. The court found that R.K. had shown no actual damages as a result of the disclosure and found the $ 1 million damages amount excessive. R.K. was ordered to pay $35,000 in arrears and to continue the $5,000 monthly payments as provided by the Agreement. Additionally, because R.K. was found to be in contempt, the court granted J.K. attorney’s fees as she requested.

¶ 14. On November 22, 2004, R.K. filed a Motion for Clarification And/Or Reconsideration of November 15, 2004 Opinion, claiming that J.K. should be found in contempt, the liquidated damages provision in the Agreement enforced, and R.K. awarded attorney’s fees pursuant to the Agreement. He contended that the penalty upon breach of the Agreement applied to each breach, citing eleven breaches in total, stating his claimed damages at $1.1 million. R.K. contended that, because it was his contractual right to deduct one-half of his attorney’s fees from the balance of any sum due J.K, he should not be found in contempt. In response to R.K.’s motion, on February 18, 2005, the court reversed its finding that R.K. was in contempt for deviating from the Order by discontinuing his $5,000 monthly payments to J.K., citing the inequitable result of imposing a finding of contempt and award of attorney’s fees against R.K. and not J.K. The Court also reversed the order for R.K. to pay J.K’s attorney’s fees.

¶ 15. On March 25, 2005, R.K. filed a Motion For Rule 60(b) Relief From November 15, 2004 Order And/Or Stay of Execution Of Order Pending Appeal, requesting, inter alia, that the court alter its November 15, 2004, order to award him liquidated damages pursuant to Section 19 and allow him to recoup half of his attorney’s fees pursuant to Section 11. In the alternative, he requested that the court stay the execution of the November 2004 and February 2005 orders, awaiting the resolution of the action in federal district court or pending the appeal of the matter to this Court. On June 10, 2005, the chancery court issued a Final Order and Opinion of the Court in response to J.K.’s Motion for Citation For Contempt and on R.K’s Motion For Rule 60(b) Relief From November 15, 2004 Order And/Or Stay of Execution Of Order Pending Appeal. After having heard testimony and considered the motions, the court stated that R.K. had provided inadequate grounds to warrant alteration or amendment of the opinion and reiterated its findings in the February 18, 2005, Order that R.K. was not in contempt for discontinuing payments to J.K., but must pay arrears and continue payments.

¶ 16. R.K. appealed the court’s November 2004 and February 2005 orders on June 28, 2005, and J.K. filed a cross-appeal in response to the same orders on July 12, 2005. R.K. v. J.K., 946 So.2d at 768-771.

¶ 17. This Court reversed the chancery court and remanded on the issue of Mississippi Rule of Civil Procedure 60(b) relief, finding that the $242,000 award J.K. had received in federal court from her successful suit for conversion and abuse of process, if affirmed on appeal by the Fifth Circuit, subjected R.K. to multiple judgments and would result in a double recovery for J.K. Id. at 777. On remand, at the direction of this Court, the chancery court issued the following ruling:

This Court has reviewed the information in the record regarding the amount for each individual claim for damages; however, this Court cannot access the amount allocated for each of J.K’s claim for damages. This Court hereby finds that there is insufficient information in the record to determine the amount awarded to J.K. for each claim for damages. Since J.K.’s judgment against R.K. in the amount of $242,000 has been affirmed by the Fifth Circuit, and there is insufficient information in the record to determine the amounts allocated to J.K’s claim for damages, this Court is persuaded that R.K. must be granted relief from its judgment in order to prevent double recovery. Accordingly, this Court hereby denies J.K’s Motion to Enforce this Court’s November 15, 2004 Order.

¶ 18. This was error.

ANALYSIS

I. Law of the Case.

¶ 19. J.K. avers the chancery court erred in finding the record lacked sufficient evidence of her federal-court damages and saddling her with the burden of proof on R.K’s motion for Rule 60(b) relief. J.K. contends that she received no award for the actual property-distribution payments owed to her in accordance with the property-settlement agreement, but rather was awarded “consequential” damages which resulted from R.K.’s conversion of the property-settlement payments. J.K. maintains that, through her testimony in federal court, she clearly identified the incidental damages she incurred as a result R.K’s having tortiously, via abuse of process, converted the property-distribution payments; thus, there was sufficient evidence showing that the federal jury award was solely for “consequential” damages.

¶ 20. R.K. argues, however, that these issues previously were decided by this Court on the first appeal. The result of the chancery court’s decision was in keeping with the instruction of this Court that a party cannot change a contract claim to a tort claim by simply giving it the name “conversion,” thus giving double recovery for the same monetary loss. The chancery court’s decision in effect held that the satisfaction of the federal-court judgment included payment of $200,000 for the claims related to nonpayment of debt and $42,000 for all other damages.

¶ 21. The points of contention raised by J.K. on this appeal were passed upon by this Court on the first appeal. Therein, a majority of this Court held that “allowing J.K. to recover the chancery court judgment for property distribution payments as well as the federal court judgment for conversion of those same payments would be contrary to this state’s policy against multiple recoveries for the same damages.” R.K. v. J.K., 946 So.2d at 777. On that finding, this Court mandated that R.K. be granted Rule 60(b) relief from the chancery court’s previous judgment in the event the Fifth Circuit affirmed the federal district court’s judgment. Id.

¶ 22. Generally, under the law-of-the-case doctrine, unless additional facts materially pertinent to a decision on second appeal are shown in the record, the former determination is controlling. See Holcomb v. McClure, 217 Miss. 617, 64 So.2d 689, 691 (1953) (“the law of the case as established on first appeal will ordinarily control on later trials and appeals of same case involving the same issues and facts”). However, this Court may, in certain exceptional instances, overturn a previous decision when that decision was manifestly erroneous, and upholding it on subsequent appeal would result in a grave injustice. Simpson v. State Farm Fire & Cas. Co., 564 So.2d 1374, 1377 (Miss.1990) (overruled in part on other grounds); Brewer v. Browning, 115 Miss. 358, 366, 76 So. 267, 270 (1917).

¶ 23. In the record now before this Court is the Fifth Circuit’s unpublished opinion affirming the district court award. The Fifth Circuit added nothing specific that would enable this Court to resolve the quandary confronting this Court on first appeal, that being the lack of information regarding the measure of damages awarded for J.K.’s conversion claim. R.K. v. J.K., 946 So.2d 764, 777 n. 4. However, the Fifth Circuit’s opinion has brought to light a number of procedural and substantive deficiencies that occurred in this matter when it was before the federal district court, which this Court did not consider on first appeal.

¶ 24. Ordinarily, based on numerous doctrines that need not be delineated for our purposes here, this would be of no concern to this Court. But due to the unique circumstances attending this case, which unfortunately contributed to the result of our previous decision, we find these deficiencies relevant to the matter before us.

¶ 25. The record, as will be discussed, indelibly reveals R.K. to be the party at fault. Thus, the uncertainty as to the measure of damages that confronted this Court on first appeal should rest with him. Therefore, we depart from our previous decision finding that R.K. was entitled to Rule 60(b) relief.

II. Second Appeal.

¶ 26. At the outset, we point out that the only measure of damages mentioned by this Court on first appeal was in footnote four of the opinion. See R.K. v. J.K. 946 So.2d at 777 n. 4. In response to R.K.’s assertion that J.K.’s federal jury award was an amount largely based on J.K.’s claim for conversion, we noted:

The district court cited as J.K.’s damages:

payments due her per the divorce settlement which R.K. stopped paying; mental anguish and emotional distress, for which she obtained medical treatment; missing approximately five days of work because of this federal case, for which she lost wages of $1050; incurring attorney’s fees, which had reached approximately $45,000 by the end of April 2004; and $500 to a process server due to [R.K.’s] dodging process.

Id. at 776-77. This was a significant oversight by this Court, as the language was taken from the federal district court’s September 14, 2004, Opinion and Order on the parties’ motions for summary judgment. Thus, we deem it necessary to reiterate some of the above-mentioned facts of this case, and additionally point out what the record discloses occurred in the federal case.

A. Recap with Modifications.

¶ 27. Again, the matter in federal district court began when R.K’s “longtime” friend/legal counsel, C.G., filed suit against J.K., alleging wiretapping fraud in federal court just less than four months after the chancery court issued a final judgment of divorce on August 29, 2002. Id. at 769. J.K. answered C.G.’s complaint and counterclaimed for state-law conversion and abuse of process. As part of the counterclaim, J.K. alleged C.G. had conspired with R.K. to commit the torts. Shortly thereafter, R.K. intervened in the suit, seeking damages from J.K. and an injunction against disclosure of the tapes’ contents, basing his claims on the federal Wiretap Act. Federal Wiretap Act, 18 U.S.C. § 2515. J.K. then counterclaimed against R.K. for conspiracy, conversion, and abuse of process.

¶ 28. On September 14, 2004, the district court denied both R.K.’s and C.G.’s motions for summary judgment as to J.K.’s counterclaims for conspiracy and abuse of process. According to the district court’s order, J.K. had claimed that R.K. and C.G. instigated the federal action as a conspiracy to commit conversion. In its order, the district court set forth the elements a plaintiff must show to succeed in claims of conspiracy and abuse of process, respectively. As previously mentioned, the district court cited J.K.’s damages for conspiracy as follows: payments due her per the divorce settlement which R.K. stopped paying; mental anguish and emotional distress, for which she obtained medical treatment; missing approximately five days of work because of this federal case, for which she lost wages of $1,050; incurring attorney’s fees, which had reached approximately $45,000 by the end of April 2004; and $500 for fees paid to a process server due to R.K’s dodging process. Likewise, the district court cited these same damages for J.K’s abuse-of-process claim.

¶ 29. Shortly thereafter, on November 15, 2004, in response to J.K’s motion for contempt and specific performance, the chancery court ordered R.K. to pay $35,000 in arrears, and ordered that he continue the $5,000 monthly payments.

¶ 30. In February 2005, the federal trial was conducted. After jury selection but before opening statements, C.G. and J.K. voluntarily dismissed their claims against one another. At trial, according to the Fifth Circuit, R.K. asserted during his case-in-chief that he “was entitled” to withhold the property settlement payments under the terms of the agreement.

¶ 31. In her ease-in-chief, J.K. submitted into evidence the chancery court’s November 15 judgment finding R.K. in contempt of court for willfully failing to make the $5,000 monthly payments, and ordering that he pay the $35,000 owed in arrears. During direct examination, J.K. testified that R.K. had not paid her the $35,000, the arrearage of which had increased to $50,000 by the time of trial. The following exchange then took place between J.K. and her attorney:

Q. Let’s talk about your damages, if any, for a minute [J.K.]. Since this federal case was filed and the things that have happened in the chancery case as well as beginning in December of 2002, what effect, if any, has all this litigation had on your mental or emotional condition?
A. It’s been draining. It’s been — I mean, can’t sleep at night. Wake up in the middle of the night....
Q. Have you ever taken any tranquilizers or medicine for depression prior to May 1, 2004?
A. No, I have not.
Q. Did a time come when you did discuss medications with any physician?
A. Yes....
Q. What, if any medication did he prescribe for you ... ?
A. He prescribed a medication called Lexapro.
Q. So what has been your cost of that medication so far, first with the Lexa-pro?
A. $187.08.
Q. How about the Effexor?
A. $272.76.
Q. How much did Mr. Wilkinson charge for his efforts to serve [R.K.] with process?
A. $371.15.
Q. Look at Exhibit JK-36.... What is that?
A. It’s the proof of service — summons from Matt Hawkins.
Q. And how much did he charge for that?
A. $30.
Q. [J.K.] have you missed any time from work as a result of this litigation that [R.K.] and [C.G.] have filed against you?
A. Yes, sir.
Q. How much time off work have you missed?
A. Right at three weeks.
Q. How much do you get paid an hour? A. $30.
Q. And do you know approximately the total hours you’ve missed?
A. 102 hours.
Q. And have you multiplied that out to see what your lost earnings as a result of this have been?
A. Yes, sir. It’s $3060[.]
Q. And what was the total amount billed [fees and expenses from Daniel, Coker, Horton & Bell attorneys, as of January 12, 2005]?
A. $117,440.52.
Q. And what is the total amount billed? A. $130,007.54.

¶ 32. After the close of evidence the district court instructed the jury on J.K.’s damages for conversion, abuse of process, and civil conspiracy:

If you find from a preponderance of the credible evidence that [J.K.] has proved her claims for conversion, abuse of process and/or conspiracy, you must consider whether [J.K.] suffered damages as a result of any wrongful act of [R.K.], if any:
In considering an award of damages, you may consider:
1) Mental anguish and emotional distress for which she obtained medical treatment;
2) Cost of prescription drugs;
3) Lost wages;
4) Attorney’s fees; and
5) Fees paid to a process server.

¶ 33. During closing arguments, J.K.’s attorney gave the following summation with regard to J.K.’s claim for damages:

As to [J.K.’s] damages, it’s been proved through her testimony and through the testimony of Dr. Wiley that medication was necessary for the nervousness and stress, the anxiety that all this had put on her. And she’s proved her damages on that were $406....
[S]he paid those process servers a total of $401.
She had lost earnings. She testified to the number of days that she lost from work and it was $3,060 she’s lost from her job as a result of all these lawsuits. She’s incurred — she’s paid as long as she could and she hasn’t been able in almost a year, but the attorney’s fees she’s incurred were $130,000.... And, finally, her mental anguish and emotional distress throughout this ordeal. Since December of 2002, over two years, she’s been put under this. And I submit to you that you need to evaluate that and return her a verdict of an adequate — that would adequately compensate her. That’s about 700 days, I guess a bit more than that now. And I submit to you that $70,000 for that would not be too large a figure because this — [R.K.] should be discouraged from this sort of thing. He shouldn’t ever again try to take this lady’s money. I submit to you when you consider the evidence you should return a verdict for zero dollars for [R.K.] and return a verdict for [J.K.] on her counterclaim in the approximate amount of $200,000 for her actual damages.

B. Damages.

¶ 34. It is well-understood that in an action seeking damages, the plaintiff bears the burden of proof as to the amount of damages. Puckett Machinery Co. v. Edwards, 641 So.2d 29, 36 (Miss.1994) (citing City of New Albany v. Barkley, 510 So.2d 805, 808 (Miss.1987)). This requires the plaintiff to place into evidence such proof of damages as the nature of case permits, with as much accuracy as is reasonably possible. Thomas v. Global Boat Builders & Repairmen Inc., 482 So.2d 1112, 1116 (Miss.1986) (citation omitted). “Where the existence of damages has been established, the plaintiff will not be denied the damages awarded by a [fact finder] merely because a ‘measure of speculation and conjecture is required’ in determining the amount of the damages.” TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1017 (Miss.1997) (quoting Piney Woods Country Life Sch. v. Shell Oil Co., 905 F.2d 840, 845-46 (5th Cir.1990)). As it is well-recognized in Mississippi, “a party will not be permitted to escape liability because of the lack of a perfect measure of damages his wrong has caused.” Aqua-Culture Technologies, Ltd. v. Holly, 677 So.2d 171, 184 (Miss.1996) (quoting R & S Dev., Inc. v. Wilson, 534 So.2d 1008, 1012 (Miss.1988)).

¶ 35. Typically, “[w]hen a defendant relies on matters in mitigation or reduction of damages, the burden is on him to make proof of facts which will operate to bring the mitigation into effect as against the opposite party.” Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112 (1949) (citations omitted). If a defendant wishes the jury instructed on such a matter it is incumbent upon the defendant to specifically request it, “either by an instruction on his own, or that it be added to one of the plaintiffs instructions.” Young v. Robinson, 538 So.2d 781, 783 (Miss.1989) (holding that, “[i]n the absence of specifically calling the matters to the attention of the circuit judge and tendering a requested instruction embracing this issue, any error thereasto is waived”) (citations omitted).

¶ 36. Under both federal and state law, juries are presumed to follow the instructions given to them by the trial judge. See Marshall v. Lonberger, 459 U.S. 422 n. 6, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (“the crucial assumption underlying the system of trial by jury is that juries will follow the instructions given them by the trial judge”) (citation and inner quotation marks omitted); Johnson v. Fargo, 604 So.2d 306, 311 (Miss.1992) (“This Court assumes jurors will follow the instructions given to them by the trial court”) (citations omitted). A damage instruction should confine the jury to such damages as are shown by evidence. Meaut v. Langlinais, 240 Miss. 242, 126 So.2d 866, 868 (1961) (citation omitted).

¶ 37. Here, while R.K. correctly points out that the measure of damages in a conversion action is the value of the property at the time of conversion, he fails to take into consideration that Mississippi also allows for consequential damages in similar actions, if warranted. See West v. Combs, 642 So.2d 917, 921 (Miss.1994) (“the measure of damages in a conversion action is the value of the property at the time and place of the conversion”); Cmty. Bank v. Courtney, 884 So.2d 767, 775 (Miss.2004) (“damages resulting from a conversion that are not ordinary, usual, or commonly to be expected, are [also] recoverable so long as the parties in question have those effects in contemplation at the time of the wrong as the probable result”) (citing Pride Oil Co. v. Tommy Brooks Oil Co., 761 So.2d 187, 191-92 (Miss.2000)); see also West, 642 So.2d 917, 921 (Miss.1994) (“punitive or exemplary damages may be awarded for the conversion of another’s property if there is evidence of acts which are willful, wrong, malicious, or oppressive”) (citing Phillips Distribs. Inc. v. Texaco, Inc., 190 So.2d 840 (Miss.1966)).

¶ 38. Based on our review of the complete record, it appears that the federal jury was instructed to consider compensatory damages as to J.K’s abuse-of-process claim and nothing other than consequential damages on her conversion claim. Contra R.K. v. J.K. 946 So.2d at 777 (R.K. asserting that the federal jury award was an amount based largely on J.K.’s claim for conversion). Without speaking to the merits of the instruction itself, we can only conclude, as J.K. rightfully points out, that the jury presumably contemplated only that which the federal district court instructed it to consider: attorney’s fees, fees paid to a process server, cost of prescription drugs, and mental anguish. Johnson, 604 So.2d at 311.

CONCLUSION

¶ 39. Our previous mandate to the chancery court ordering that R.K. be given relief under Rule 60(b) of the Mississippi Rules of Civil Procedure was clear error by this Court. Therefore, we reverse the chancery court’s order granting said relief, and remand the matter to the chancery court with instructions that the lower court reinstitute J.K.’s adjudicated property distribution payments in full, giving R.K. credit for any amounts paid thereon, separate and apart from the federal jury award.

¶ 40. REVERSED AND REMANDED.

WALLER, C.J., GRAVES, P.J., RANDOLPH, LAMAR AND CHANDLER, JJ., CONCUR. CARLSON, P.J., DICKINSON AND KITCHENS, JJ., NOT PARTICIPATING.

      . Her claim of conspiracy was finally dismissed with prejudice.

      . The chancery court awarded attorney’s fees to each party relative to the court’s contempt findings.

      . R.K., who is a physician, also has a law degree, and met C.G. while in law school.

      . According to the Fifth Circuit's unpublished opinion, C.G. testified at trial that, prior to filing suit, he had discussed with R.K. that he planned to sue J.K. and the potential impact of the settlement agreement on J.K.’s defense.

      . In the order, the district court treated J.K.’s conversion claims, filed against both R.K. and C.G., as one with her conspiracy claims against each individually.

      .On appeal before the Fifth Circuit, R.K. charged that the district court erred by admitting evidence of the chancery court's judgment finding him in contempt for his withholding alimony payments. The Fifth Circuit found the charge meritless, noting that R.K. first brought up upon direct examination during his case-in-chief the isstie of whether the property settlement agreement allowed him to withhold the payments.